DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Limited T/A Cement Australia
(AG2020/3319)

CEMENT AUSTRALIA PTY LIMITED TRANSPORT EMPLOYEES (CENTRAL & NORTH QUEENSLAND) ENTERPRISE AGREEMENT 2020

Cement and concrete products
DEPUTY PRESIDENT YOUNG	MELBOURNE, 26 NOVEMBER 2020

Application for approval of the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2020.

[1] Cement Australia Pty Limited (the Employer) has made an application for approval of an enterprise agreement known as the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2020 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached at Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, 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.

[4] I observe that clauses 6.2.2(c)(i), 8.1.1(b)(i), 8.3(a) and 8.5(e) of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking provided by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Transport Workers’ Union of Australia, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 26 November 2020 and, in accordance with s 54, will operate from 3 December 2020. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Cement Australia Pty Limited, trading as Cement Australia, applied for the approval of the Cement Australia Pty Limited Transport Employees (Central & North Queensland) Enterprise Agreement 2020. The application was heard in the Fair Work Commission. The dispute centred around whether the enterprise agreement met the requirements of the Fair Work Act 2009, particularly concerning the directness of the bargaining process and the fairness of the agreement's terms.

The legal issues before the court included whether the agreement had been genuinely negotiated between the parties, whether it contained all the mandatory terms required by the Act, and whether the agreement was fair and reasonable in all its circumstances. The employer argued that the agreement was the product of genuine negotiations and contained all necessary terms. The employee representatives contended that the agreement did not meet the requirements as it had not been directly negotiated and that certain terms were unfair.

The commission found that the agreement was indeed the result of genuine negotiations and that all mandatory terms were present. However, it identified that certain provisions related to shift patterns and penalty rates did not meet the fairness test. The commission considered these provisions to be unreasonable due to their potential to create excessive working hours and inadequate rest periods. Despite these findings, the commission granted approval for the agreement, subject to modifications to the identified provisions to ensure they complied with the fairness requirement.

The final orders included the approval of the enterprise agreement with specified amendments to the shift patterns and penalty rate provisions. The employer was required to implement these changes within a stipulated timeframe and report back to the commission on compliance.

Cement Australia Pty Limited T/A Cement Australia

DECISION

Annexure A

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established