Cement Australia Pty Ltd

[2021] FWCA 5953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Ltd
(AG2021/7416)

CEMENT AUSTRALIA PTY LTD PACKAGED PRODUCTS OPERATORS GEELONG (VIC) ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER O’NEILL	MELBOURNE, 27 SEPTEMBER 2021

Application for approval of the Cement Australia Pty Ltd Packaged Products Operators Geelong (Vic) Enterprise Agreement 2021

[1] Cement Australia Pty Ltd has applied for approval of an enterprise agreement known as the Cement Australia Pty Ltd Packaged Products Operators Geelong (Vic) 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.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. 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. The undertaking is taken to be a term of the Agreement.

[3] Subject to the undertaking 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.

[4] I observe that clause 7.1.3 is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking given 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 October 2021. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Cement Australia Pty Ltd, applied to the Fair Work Commission for the approval of the Cement Australia Pty Ltd Packaged Products Operators Geelong (Vic) Enterprise Agreement 2021. The nature of the dispute was focused on the procedural fairness and content of the proposed agreement. The court involved was the Fair Work Commission, which is the tribunal responsible for handling such matters.

The legal issues before the court involved determining whether the agreement was fairly negotiated and if it met the requirements of procedural fairness. This included examining whether the necessary genuine steps were taken to allow the agreement to be negotiated and if the content of the agreement was in the interests of the employees. Additionally, the court needed to consider if the agreement was made in good faith and without coercion.

The Fair Work Commission found that the agreement was fairly negotiated and met the requirements of procedural fairness. The court concluded that genuine steps had been taken to allow for the negotiation of the agreement and that the content of the agreement was in the interests of the employees. The commission determined that the agreement was made in good faith and without coercion. The court approved the agreement, finding it to be a lawful and appropriate enterprise agreement.

No final orders were made as the court approved the agreement and deemed it to be in compliance with the relevant legislation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established