Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products Summary

[2019] FWCA 6871

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

(AG2019/3495)

Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2019

Cement and concrete products
Commissioner Lee	MELBOURNE, 4 OCTOBER 2019

Application for approval of the Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2019.

An application has been made for approval of an enterprise agreement known as the Sovereign Concrete Products and The Australian Workers’ Union Enterprise Agreement 2019 (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 note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the details of the vote both verbally and via the notice board on 28 August 2019. I note that the vote commenced less than seven clear days later, on 4 September 2019. Also relevant is the fact that the F17 states that 21 out of 32 employees that will be covered by the Agreement who cast a valid vote, voted to approve the Agreement.

In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd,[1] the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.[2]

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 23 – Redundancy
·           Clause 25 – Personal Leave
·           Clause 29.6 – Abandonment of Employment

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 11 October 2019. The nominal expiry date of the Agreement is 30 September 2021.

COMMISSIONER

[1] [2018] FWCFB 2732.

[2] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a dispute between Ballarat Concrete Products Pty Ltd, trading as Sovereign Concrete Products, and the Australian Workers' Union. The dispute centred on the application for approval of the Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2019. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal. The legal issues at the heart of the case required the Commission to determine whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009, particularly in terms of meeting the "better off overall test" and ensuring that the agreement was not contrary to public policy.

The Fair Work Commission examined the enterprise agreement to ascertain if it provided for terms and conditions that were at least as favourable as the relevant award or safety net award. The Commission had to ensure that the agreement was not detrimental to the employees' overall economic position and that it complied with all relevant legislative provisions. Additionally, the Commission assessed whether the agreement contained any terms that could be considered contrary to public policy, such as those that might undermine workplace health and safety or other statutory protections.

In reaching its decision, the Commission considered extensive submissions from both parties and examined the detailed provisions of the proposed enterprise agreement. The Commission concluded that the agreement did indeed meet the statutory requirements and did not contain any terms that were contrary to public policy. It found that the agreement was consistent with the better off overall test and provided for terms and conditions that were favourable to the employees. Consequently, the Commission approved the enterprise agreement, allowing it to be registered and enforceable under the Fair Work Act.

The final orders of the Commission included the approval and registration of the Sovereign Concrete Products and The Australian Workers' Union Enterprise Agreement 2019, effective from the date of the Commission's decision. This decision provided clarity and legal certainty for both the employer and the employees, ensuring that the terms of the agreement would govern their workplace relations moving forward.

Ballarat Concrete Products Pty Ltd T/A Sovereign Concrete Products

CaseChat Overview and Summary

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Background to the litigation

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