Cement Australia Pty Limited T/A Cement Australia

[2025] FWCA 527

[2025] FWCA 527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Cement Australia Pty Limited T/A Cement Australia

(AG2024/5182)

CEMENT AUSTRALIA PTY LIMITED TRANSPORT EMPLOYEES (VIC) ENTERPRISE AGREEMENT 2024

Cement and concrete products
COMMISSIONER CONNOLLY	MELBOURNE, 18 FEBRUARY 2025

Application for approval of the Cement Australia Pty Limited Transport Employees (VIC) Enterprise Agreement 2024

Approval

1. An application has been made for approval of an enterprise agreement known as the Cement Australia Pty Limited Transport Employees (VIC) Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Cement Australia Pty Limited (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 14 January 2025.

1. The notification time for the Agreement under s.173(2) was 15 October 2024 and the Agreement was made on 19 December 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying after 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023.[1] 

1. On 28 January 2025, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are three National Employment Standards (NES) issues that require comment, and although they have been addressed in the undertaking below, I have outlined them as follows:

·  Annual Leave: Clause 6.3 of the Agreement provides for annual leave but it does not provide for an additional week of leave per year for Shiftworkers for the purposes of the NES. Shiftwork is provided for under the Agreement. This is inconsistent with s.81(1)(b) of the Act.

·  Hours of Work: Clause 5.1(a) of the Agreement provides the working roster of a Full-time employee as 180.60 hours worked over a cycle not exceeding 20 days which results in working weeks of 45.15 hours, however this incorporates overtime. It is noted that Schedule 1 indicates that an employee working this roster would receive 1.43 hours per day paid at 150%, which when multiplied by the working days in a week, is 7.15. 45.15 – 7.15 = 38 ordinary hours, so it appears as though the Agreement presents a maximum ordinary hours of 38 hours per week, however this isn’t explicitly clear.

·  Post-reform casual conversion provisions: Clause 3.2 of the Agreement contains a more beneficial version of the pre-26 August 2024 conversion scheme as a casual employee can access casual conversion after 6 months, as opposed to 12 months of employment. However, this does not make note of new employee choice conversion provisions which will be available to eligible employees from February 2025.

1. The Undertaking attached in Annexure A below acts as an effective NES precedence clause, in that it states “… [T]his Agreement will be read and interpreted in conjunction with the National Employment Standards (NES). Where there is an inconsistency between this agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.” As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has provided written undertakings, dated 3 February 2025, and a copy is attached in Annexure A. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative that responded, supported the undertaking.

1. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement, thus appearing to meet the requirements of s.190(3). The undertaking is taken to be a term of the Agreement.

1. Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Road Transport and Distribution Award 2020[2] is taken to be a term of the Agreement.

1. 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) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 March 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

[2] [MA000038].

Printed by authority of the Commonwealth Government Printer

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