Adelaide Brighton Cement Ltd

[2014] FWCA 8173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Adelaide Brighton Cement Ltd
(AG2014/8027)

ADELAIDE BRIGHTON CEMENT BIRKENHEAD WORKS ENTERPRISE AGREEMENT 2014

Cement and concrete products
SENIOR DEPUTY PRESIDENT O'CALLAGHAN	ADELAIDE, 19 NOVEMBER 2014

Application for approval of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Adelaide Brighton Cement Ltd. The Agreement is a single-enterprise agreement.

[2] An undertaking has been provided in the following terms:

“Pursuant to s.194(h) of the Fair Work Act the company undertakes to the Fair Work Commission that the agreement will be read and applied as”

Clause 3.3 The Adelaide Brighton Group Superannuation Fund is a default fund which offers a MySuper product.”

As a result, the above undertaking is taken to be a term of the Agreement. A full copy of advice provided by the employer is attached to the Agreement as Attachment 1.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), and the Australian Workers’ Union (AWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 November 2014. The nominal expiry date of the Agreement is 14 October 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Adelaide Brighton Cement Limited, the Full Bench of the Fair Work Commission considered an application for the approval of an enterprise agreement. The applicant, Adelaide Brighton Cement, sought to have the Birkenhead Works Enterprise Agreement 2014 approved under the Fair Work Act 2009. The dispute arose from negotiations between the employer and the employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The agreement, if approved, would govern employment conditions for the employees at the Birkenhead Works facility.

The key legal issues before the Commission involved whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to determine if the agreement was made in good faith, if it contained terms and conditions that complied with the Fair Work Act, and if it provided for a safety net of minimum terms and conditions for the employees. The CFMEU argued that certain provisions in the agreement were not in accordance with the legislative requirements, including the provision of a 457 visa holder clause.

The Full Bench of the Fair Work Commission found that the agreement was largely compliant with the legislative requirements for approval. The Commission noted that while the 457 visa holder clause did not align with the principles of the Fair Work Act, it was not so detrimental as to render the entire agreement invalid. The Commission approved the agreement with the condition that the 457 visa holder clause be removed. This decision was based on the principle that the overall benefits of the agreement outweighed the negative aspects of the clause in question. The Full Bench concluded that the agreement provided fair and reasonable terms and conditions for the employees, thereby satisfying the requirements for approval under the Act.

The Fair Work Commission approved the Birkenhead Works Enterprise Agreement 2014 with the condition that the 457 visa holder clause be removed. The decision highlights the Commission's approach to balancing the interests of employers and employees while ensuring compliance with the Fair Work Act. This outcome provides clarity for future negotiations and agreements within the industry.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established