Cement Australia Pty Limited T/A Cement Australia

[2023] FWCA 1025

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cement Australia Pty Limited T/A Cement Australia

(AG2023/818)

CEMENT AUSTRALIA TRANSPORT WORKERS (SOUTH EAST QUEENSLAND) ENTERPRISE AGREEMENT 2022

Cement and concrete products
COMMISSIONER SIMPSON	BRISBANE, 11 APRIL 2023

Application for approval of the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2022 (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 Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

Noting clause 1.5(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia (TWU) raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the high rates of pay, the TWU concerns do not appear to be BOOT concerns.

The TWU lodged a Form F18 statutory declaration giving 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 TWU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cement Australia Pty Limited, trading as Cement Australia, applied to the Fair Work Commission for approval of the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2022. The applicants sought to have the agreement made pursuant to section 234 of the Fair Work Act 2009. The Fair Work Commission was required to determine whether the agreement met the requirements of the Act and whether it should be approved.

The key legal issue before the Commission was whether the agreement was a "registered agreement" as defined in the Fair Work Act. The Commission noted that for an agreement to be registered, it must meet certain criteria including that it complies with the good faith bargaining obligations under section 179 of the Act, and that it was made without any improper conduct. The Commission also considered whether the agreement provided for a fair and efficient resolution of workplace disputes.

The Fair Work Commission found that the agreement complied with the requirements of the Fair Work Act. It concluded that the agreement was the product of genuine, good faith bargaining and that there was no improper conduct during the bargaining process. The Commission found that the agreement provided for an efficient and fair resolution of workplace disputes. Accordingly, the Commission approved the agreement.

The Fair Work Commission made an order approving the Cement Australia Transport Workers (South East Queensland) Enterprise Agreement 2022 as a registered agreement. The agreement was to be registered on the Register of Approved Agreements maintained by the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established