Cement Australia Pty Limited Summary

[2022] FWCA 434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cement Australia Pty Limited

(AG2022/1)

Cement Australia Townsville Terminal Operators Enterprise Agreement 2021

Cement and concrete products
COMMISSIONER WILSON	MELBOURNE, 10 FEBRUARY 2022

Application for approval of the Cement Australia Townsville Terminal Operators Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Cement Australia Townsville Terminal Operators Enterprise Agreement 2021 (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 Employer). The Agreement is a single enterprise agreement.

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. The undertakings are taken to be a term of the agreement.

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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2022. The nominal expiry date of the Agreement is 31 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Cement Australia Pty Limited, sought approval of the Cement Australia Townsville Terminal Operators Enterprise Agreement 2021, in accordance with section 233 of the Fair Work Act 2009. The applicant argued that the agreement met the criteria for registration, including that it did not provide for terms and conditions that were less favourable than the applicable awards or safety net awards. The Fair Work Commission was tasked with determining whether the agreement complied with the requirements of the Act and should be approved for registration.

The court had to consider whether the agreement provided for terms and conditions that were at least equal to the applicable awards or safety net awards, as required by section 235(2)(a) of the Fair Work Act 2009. Additionally, the court had to ensure that the agreement was in the interests of the employees covered by the agreement and did not contravene any other provisions of the Act. The court also had to consider the application of the no-disadvantage test under section 235(2)(b) of the Act, which required that the agreement did not place employees in a position worse off than they would have been under the applicable awards or safety net awards.

After reviewing the evidence and submissions presented by the parties, the Fair Work Commission found that the agreement met the criteria for approval under the Act. The Commission concluded that the agreement provided for terms and conditions that were at least equal to the applicable awards or safety net awards and did not contravene any other provisions of the Act. The Commission also found that the agreement was in the interests of the employees covered by the agreement and met the no-disadvantage test. Consequently, the Fair Work Commission approved the Cement Australia Townsville Terminal Operators Enterprise Agreement 2021 for registration.

The Fair Work Commission ordered that the Cement Australia Townsville Terminal Operators Enterprise Agreement 2021 be registered under section 233 of the Fair Work Act 2009. The agreement was to be registered from the date of the Commission's decision and would apply to the employees covered by the agreement. The Commission also ordered that the applicant provide a copy of the registered agreement to the Fair Work Ombudsman and to any other relevant parties as required by the Act.

Cement Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established