Cement Australia Pty Limited T/A Cement Australia

[2022] FWCA 657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cement Australia Pty Limited T/A Cement Australia

(AG2022/314)

Cement Australia Packaged Products West FootscrayEnterprise Agreement 2021

Cement and concrete products
COMMISSIONER O'NEILL	MELBOURNE, 25 FEBRUARY 2022

Application for approval of the Cement Australia Packaged Products West Footscray Enterprise Agreement 2021

Cement Australia Pty Limited has applied for approval of an enterprise agreement known as the Cement Australia Packaged Products West Footscray Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is 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.

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.

I observe that clause 10.3 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 1.5 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 March 2022. The nominal expiry date of the Agreement is 31 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cement Australia Pty Limited, trading as Cement Australia, applied to the Fair Work Commission for approval of the Cement Australia Packaged Products West Footscray Enterprise Agreement 2021. The application involved the terms and conditions of employment for employees at the West Footscray site. The dispute centred on whether the proposed agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the Commission needed to consider whether the agreement was genuinely negotiated and whether the appropriate steps were taken to secure employee support. Substantively, the agreement had to meet the "better off overall test," ensuring employees were not worse off financially and provided reasonable terms and conditions of employment.

The Commission examined the evidence and submissions from both parties. It found that the agreement was genuinely negotiated and that adequate steps were taken to secure employee support, satisfying the procedural requirements. Regarding the substantive requirements, the Commission determined that the agreement met the better off overall test, as it provided employees with reasonable terms and conditions without adversely affecting their financial position. Consequently, the Commission approved the agreement.

The final orders of the Commission were that the Cement Australia Packaged Products West Footscray Enterprise Agreement 2021 be approved as a registered agreement under section 178 of the Fair Work Act. This decision allows the agreement to be in effect, governing the employment terms for the relevant employees at the West Footscray site.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established