DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Limited T/A Cement Australia
(AG2019/3291)

CEMENT AUSTRALIA PTY LIMITED TRANSPORT EMPLOYEES (NSW) ENTERPRISE AGREEMENT 2019

Road transport industry
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 19 SEPTEMBER 2019

Application for approval of the Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Cement Australia Pty Limited Transport Employees (NSW) 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 Cement Australia Pty Limited T/A Cement Australia. The Agreement is a single enterprise agreement.

[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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] I observe that clauses 9.3 and 9.12 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.6(b) 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.

[4] The Transport Workers’ Union of Australia, 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.

[5] The Agreement was approved on 19 September 2019 and, in accordance with s.54, will operate from 26 September 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cement Australia Pty Limited, trading as Cement Australia, applied for approval of the Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2019. The application was brought before the Fair Work Commission, which is tasked with overseeing and approving enterprise agreements in Australia. The application was opposed by the Transport Workers Union of Australia, which argued that the proposed agreement did not meet the requirements under the Fair Work Act 2009.

The central legal issues the Commission had to determine were whether the proposed enterprise agreement complied with the procedural and substantive requirements under the Fair Work Act. Procedurally, the Commission had to assess if the agreement was made in accordance with the legal processes and whether proper consultation had taken place. Substantively, the Commission needed to ensure that the agreement included the minimum terms and conditions prescribed by the Act and did not disadvantage employees in a manner contrary to the Act’s objectives.

The Fair Work Commission found that the enterprise agreement was procedurally sound, as it was made following appropriate consultation processes and met the necessary legal criteria. In terms of substance, the Commission examined whether the agreement included all required minimum terms and conditions and concluded that it did. Furthermore, the Commission determined that the agreement did not disadvantage employees and aligned with the objectives of the Fair Work Act. Based on this analysis, the Commission approved the enterprise agreement, finding it to be fair and reasonable.

Accordingly, the Fair Work Commission approved the Cement Australia Pty Limited Transport Employees (NSW) Enterprise Agreement 2019, thereby allowing it to come into effect as a legally binding agreement between Cement Australia and its employees.

Cement Australia Pty Limited T/A Cement Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established