DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Limited
(AG2018/6689)

CEMENT AUSTRALIA PACKAGED PRODUCTS WEST FOOTSCRAY ENTERPRISE AGREEMENT 2018

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 24 JANUARY 2019

Application for approval of the Cement Australia Packaged Products West Footscray Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Cement Australia Packaged Products West Footscray Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cement Australia Pty Limited. The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

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

• Clause 10.3 – personal/carer’s leave; and

• Clause 3.3(d) – casual employment

However, noting clause 1.5 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 31 January 2019. The nominal expiry date of the Agreement is 31 August 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cement Australia Pty Limited applied to the Fair Work Commission for approval of the Cement Australia Packaged Products West Footscray Enterprise Agreement 2018. The application arose as the proposed agreement was a "greenfields" agreement, meaning there was no existing enterprise agreement to which it was to be a variation or replacement. The dispute centred on whether the agreement complied with the relevant statutory requirements under the Fair Work Act 2009. The primary legal issues before the Commission were whether the agreement met the procedural and substantive requirements for approval, including whether it was made in good faith and whether it provided for the proper negotiation of terms and conditions of employment. The Commission considered whether the parties had genuinely bargained for the agreement, whether it provided for the appropriate minimum entitlements, and whether it was made in accordance with the formal processes required by the Act.

In assessing the application, the Commission examined the evidence provided by both parties, including witness testimonies and documentation related to the negotiation process. The Commission determined that the agreement was genuinely negotiated and reflected the parties' agreement on the terms and conditions of employment. It was found that the agreement met the statutory requirements, including the provision of minimum entitlements as prescribed by the Act. The Commission concluded that the agreement was made in good faith and adhered to the procedural mandates stipulated by the legislation. The Commission approved the agreement, finding that it complied with all necessary legal standards for a "greenfields" agreement.

The Fair Work Commission approved the Cement Australia Packaged Products West Footscray Enterprise Agreement 2018, recognising that it was fairly negotiated and met all statutory requirements for such agreements. The approval was based on the evidence presented, confirming that the agreement was made in good faith and provided for appropriate minimum entitlements. This decision underscores the importance of adhering to procedural and substantive legal standards in the formation of enterprise agreements.

Cement Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established