Cement Australia Pty Limited T/A Cement Australia

[2024] FWCA 4183

[2024] FWCA 4183

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

(AG2024/4216)

CEMENT AUSTRALIA PACKAGED PRODUCTS WEST FOOTSCRAY ENTERPRISE AGREEMENT 2024

Cement and concrete products
COMMISSIONER REDFORD	MELBOURNE, 29 NOVEMBER 2024

Application for approval of the Cement Australia Packaged Products West Footscray Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Cement Australia Packaged Products West Footscray Enterprise Agreement 2024 (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. The Agreement is a single enterprise agreement. 

Typographical errors

1. In response to concerns raised by the Commission, Cement Australia advised that the reference to “Error ! Reference source not found” in clause 8.3(a) of the Agreement should read as “(b)”. I propose to exercise my power pursuant to s 218A(2)(b) of the Act to correct this obvious error. I have sought the views of the bargaining representatives in relation to this proposition, and there was no objection. Accordingly, the Agreement is varied such that the reference under Clause 8.3 (a) (page 7) of the Agreement, under the heading ‘Volunteers' to “Error ! Reference source not found” should read “(b)”.

Undertakings 

1. In response to several issues raised with Cement Australia in relation to its application, it has provided written undertakings, a copy of which are 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.  

1. The undertakings relate to:   

a.The dispute settlement procedure.

Interaction with the National Employment Standards

1. Clause 4 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement: 

   1. Deductions: Clause 8.1(a) of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee’s entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause (clause 4) will have no effect to the extent of any inconsistency.
   2. Termination of employment: Clause 6.5(b) of the Agreement provides that termination notice provisions are in accordance with the Act, but this shall not affect the right to dismiss an employee without notice in the case the employee is “guilty of misconduct”. Additionally, clause 8.1(c) of the Agreement provides that nothing in the respective clauses shall limit any rights to dismiss an employee without notice for misconduct, dishonesty and continued breaches of the Drug and Alcohol Policy or disregard workplace health and safety obligations or serious breaches of employee safety responsibilities. In so far as this is inconsistent with the definition of serious misconduct in regulation 1.07 of the Fair Work Regulations 2009 it will have no effect, including to the extent that an employee may otherwise be eligible for notice under s.117 of the Act where, as a result of the NES precedence clause, the terms of s.117 will prevail to the extent of any inconsistency.
   3. Public holidays: Clause 14.1 of the Agreement provides that ‘with the agreement of the Employee/s concerned, a public holiday may be substituted for another day’. It is not clear if this is operating in a way where there will be agreement with an individual employee or the employees as a group. If it is intended to operate where the agreement is with employees as a group, this may be inconsistent with s 115(3) of the Act, which provides that the substitution of a public holiday with another day may only occur by agreement between the employer and an employee, rather than a majority of employees however, when read in conjunction with the NES precedence clause (clause 4) will have no effect to the extent of any inconsistency.
   4. Personal/carer’s leave: Clause 14.3 of the Agreement provides that paid personal or carer's leave is available to any employee absent due to personal illness or injury or for the purposes of caring for an immediate family or household member who is sick and requires the Employee's care and support. Under s.97 of the Act an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or to provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member. The NES precedence clause means these provisions will prevail over the agreement to the extent of any inconsistency.
   5. Compassionate leave - evidence: Clause 14.4 of the Agreement provides that payment for the period of absence will be subject to the employee providing sufficient evidence to the satisfaction of the company. Section 107(3) of the Act requires evidence that would satisfy a reasonable person. Through the NES precedence clause, this provision will prevail over the agreement to the extent of any inconsistency.

Consideration 

1. 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. 

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after approval.

COMMISSIONER

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ANNEXURE A