Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

[2022] FWCA 3164

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

(AG2022/3613)

Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2022

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 12 SEPTEMBER 2022

Application for approval of the Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Sovereign Concrete Products and The Australian Workers’ Union Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products. The Agreement is a single enterprise agreement.

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

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 16.9 – Leave Allowed Before Due Date.
· Clause 25 – Personal Leave.

However, noting clause 9 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2022. The nominal expiry date of the Agreement is 30 September 2023.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products, the applicant sought approval of the 2022 Enterprise Agreement with the Australian Workers' Union. The Fair Work Commission was the forum for this application. The central issue before the Commission was whether the agreement met the legal standards for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and reasonable terms and conditions, including pay and conditions that aligned with the safety net, and if it adhered to procedural requirements such as proper notification and opportunity for objections.

The Commission examined the agreement's provisions to ensure they complied with the minimum safety net standards. It considered the wage rates and conditions stipulated in the agreement against the relevant award provisions. Additionally, the Commission assessed the procedural fairness of the bargaining process, including whether the union and employer had genuinely attempted to reach an agreement and whether the agreement was genuinely in the interests of the employees. The Commission also reviewed the submissions and objections received during the notification period, evaluating whether these objections had been adequately addressed.

In reaching its decision, the Commission found that the agreement was fair and reasonable and met all legal requirements for approval. It noted that the wage rates and conditions were not less favourable than those provided for in the relevant award, and that the agreement included provisions for proper consultation and dispute resolution. The Commission also concluded that the bargaining process was conducted in good faith and that the agreement was genuinely in the interests of the employees. Consequently, the Commission approved the 2022 Enterprise Agreement between Ballarat Concrete Products and the Australian Workers' Union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established