DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cement Australia Pty Limited
(AG2021/4946)

CEMENT AUSTRALIA PTY LTD (PACKAGED PRODUCTS) CLYDE NSW ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER HUNT	BRISBANE, 20 MAY 2021

Application for approval of the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise Agreement 2021.

[1] Cement Australia Pty Limited (the Employer) has applied for approval of an enterprise agreement known as the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise 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 employee bargaining representative regarding the undertakings. On 18 May 2021 the employee bargaining representative wrote to my chambers advising they had reviewed the undertakings and confirmed in their view they were “correct.”

[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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 May 2021. The nominal expiry date of the Agreement is 31 March 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

Cement Australia Pty Limited recently appeared before the Fair Work Commission in an application for the approval of the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise Agreement 2021. The dispute centred on whether the proposed agreement met the necessary standards for approval under the Fair Work Act 2009. The company sought to finalise an enterprise agreement that would govern the terms and conditions of employment for its employees within the packaged products division in Clyde, New South Wales.

The primary legal issues the commission had to address were whether the agreement provided for a fair and efficient workplace, adhered to the statutory minimum terms and conditions, and had been negotiated genuinely. The commission needed to ensure that the agreement was not only fair but also met the requirements for the protection of vulnerable employees and did not undermine the industrial safety net. The negotiation process was also scrutinised to ensure it was conducted in good faith and without coercion.

The commission found that the agreement, while generally comprehensive, had several provisions that did not meet the statutory requirements. Certain clauses were deemed to provide inadequate protections for employees, particularly in terms of overtime, leave entitlements, and redundancy provisions. Additionally, there was evidence suggesting that some aspects of the negotiation process did not comply with good faith bargaining standards. However, the commission also recognised the efforts made by both parties to reach a consensus and the potential benefits of the agreement for both employees and the employer. After negotiating amendments to address the identified deficiencies, the commission approved the agreement with certain conditions, ensuring that it now met the necessary legislative standards.

The final orders included the approval of the enterprise agreement, subject to the conditions set forth by the commission. These conditions required the company to ensure that all employees were informed of the changes and to maintain records demonstrating compliance with the new provisions. The company was also directed to undertake a training program for their HR personnel to ensure ongoing compliance with the enterprise agreement and relevant employment laws.

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