Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

[2024] FWCA 3273

[2024] FWCA 3273

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

(AG2024/3036)

SOVEREIGN CONCRETE PRODUCTS AND THE AUSTRALIAN WORKERS’ UNION ENTERPRISE AGREEMENT 2024 (THE AGREEMENT).

Manufacturing and associated industries
COMMISSIONER ALLISON	MELBOURNE, 17 SEPTEMBER 2024

Application for approval of the Sovereign Concrete Products and the Australian Workers’ Union Enterprise Agreement 2024

1. Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Sovereign Concrete Products and the Australian Workers’ Union Enterprise Agreement 2024 (the Agreement).

1. The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

1. The agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees was the “Sovereign Concrete Products and The Australian Workers’ Union Enterprise Agreement 2023” which does not match the title of the Agreement to be approved. I am satisfied that this was a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

1. Clause 15 of the Agreement contained a drafting error, as it referred to “section 63” and “section 64” without appropriate reference to the Act. The Employer provided an updated copy of the Agreement which reworded this clause for greater clarity. I am satisfied that the wording of the previous clause constituted an obvious error, defect or irregularity, and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. Clause 11.2 of the Agreement, relating to part-time working arrangements, does not state that an agreement to vary a part-time employee’s regular pattern of work will be made in writing before the variation occurs. This appears contrary to the Concrete Products Award 2020 (the Award).  However, noting clause 8 of the Agreement, I am satisfied that the more beneficial provision of the Award will prevail where the Agreement is silent and the Award provides a benefit to an employee.

1. Clause 16.3 of the Agreement, relating to annual leave loading, does not provide annual leave loading for shiftworkers. The Employer provided an undertaking to resolve this issue. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

1. Subject to the undertaking 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 September 2024. The nominal expiry date of the Agreement is 30 September 2026.

COMMISSIONER

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Annexure A