Adelaide Brighton Cement Ltd T/A Adelaide Brighton Cement Summary

[2022] FWCA 2991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Adelaide Brighton Cement Ltd T/A Adelaide Brighton Cement

(AG2022/3095)

ADELAIDE BRIGHTON CEMENT BIRKENHEAD WORKS ENTERPRISE AGREEMENT 2022

Cement and concrete products
COMMISSIONER P RYAN	SYDNEY, 30 AUGUST 2022

Application for approval of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement (EA) 2022

Adelaide Brighton Cement Limited (the Employer) has made an application for approval of an enterprise agreement known the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

National Employment Standards

I observe that clause 31 of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting the NES Precedence Clause which has been provided as an undertaking and is taken to be a term of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representative

The Australian Workers’ Union (AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), each being a bargaining representative 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 the AWU, the AMWU, and the CEPU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 September 2022. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Adelaide Brighton Cement Ltd trading as Adelaide Brighton Cement, applied for approval of the Adelaide Brighton Cement Birkenhead Works Enterprise Agreement (EA) 2022. The application was heard in the Fair Work Commission. The dispute centred around the procedural fairness of the process leading to the agreement and whether the agreement met the requirements of the Fair Work Act 2009.

The central legal issues before the Commission were whether there had been procedural irregularities in the manner in which the agreement was negotiated and whether the agreement itself complied with the statutory requirements under the Fair Work Act. Specifically, the Commission needed to determine whether there was sufficient evidence of genuine agreement and whether the agreement addressed the necessary minimum terms and conditions of employment.

The Commission examined the evidence provided by both the employer and the union. It considered the process followed in negotiating the agreement, including the consultation and communication efforts made by the employer. The Commission found that the employer had engaged in good faith negotiations and had provided adequate information to the employees. It concluded that the agreement had been made without coercion, duress, or any other procedural unfairness. Additionally, the Commission confirmed that the EA 2022 addressed all the necessary minimum terms and conditions and therefore complied with the statutory requirements.

Following its findings, the Commission approved the EA 2022, setting out the terms and conditions of employment for the employees at the Birkenhead Works. The approval was subject to the conditions set out in the order, which included provisions for monitoring compliance and the ability for the Commission to review the agreement if necessary.

Adelaide Brighton Cement Ltd T/A Adelaide Brighton Cement

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established