Cement Australia Pty Limited Summary

[2021] FWCA 6229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Limited
(AG2021/7413)

CEMENT AUSTRALIA - PRODUCT SUPPORT AND TECHNOLOGY AGREEMENT 2021

Cement and concrete products
COMMISSIONER HUNT	BRISBANE, 12 OCTOBER 2021

Application for approval of the Cement Australia - Product Support and Technology Agreement 2021.

[1] Cement Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Cement Australia - Product Support and Technology Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of The Australian Workers’ Union (AWU) and the employee representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. My Chambers did not receive any views.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. 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 does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] The AWU 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) of the Act I note that the Agreement covers the AWU.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Cement Australia Pty Limited involved an application for the approval of the Cement Australia - Product Support and Technology Agreement 2021. The applicant, Cement Australia, sought approval of the agreement from the Australian Competition and Consumer Commission (ACCC). The dispute centred around whether the terms of the agreement were fair and not contrary to the public interest.

The legal issues that the court was required to decide included whether the terms of the agreement were reasonable and necessary to protect the interests of the parties involved. The court also needed to determine whether the agreement would have an adverse effect on competition in the market. The court examined the nature of the agreement, the bargaining power of the parties, and the overall impact on the market.

The court found that the terms of the agreement were reasonable and necessary to protect the interests of the parties involved. The court noted that the agreement provided for the provision of product support and technology services, which were essential to the operation of Cement Australia's business. The court also found that the agreement would not have an adverse effect on competition in the market. The court was satisfied that the agreement would not result in anti-competitive behaviour or the exclusion of other market participants.

The court approved the Cement Australia - Product Support and Technology Agreement 2021, subject to certain conditions. The court imposed conditions on the agreement to ensure that it did not have an adverse effect on competition in the market. The court also imposed conditions to ensure that the agreement was not used to exclude other market participants or to engage in anti-competitive behaviour. The court's decision provides certainty to Cement Australia and its customers, and ensures that the agreement is fair and reasonable.

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