Cement Australia Pty Ltd Summary

[2021] FWCA 5889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Cement Australia Pty Ltd
(AG2021/6979)

CEMENT AUSTRALIA PACKAGE PRODUCTS OPERATORS PINKENBA ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER HUNT	BRISBANE, 20 SEPTEMBER 2021

Application for approval of the Cement Australia Package Products Operators Pinkenba Enterprise Agreement 2021.

[1] Cement Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Cement Australia Package Products Operators Pinkenba Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the employee representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[5] I indicated to the parties my view that the Agreement’s existing consultation term did not meet the requirements of s.205(1)(a)(i) of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is attached to the Agreement and taken to be a term of it.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 September 2021. The nominal expiry date of the Agreement is 30 May 2022.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

The Fair Work Commission was presented with an application for the approval of the Cement Australia Package Products Operators Pinkenba Enterprise Agreement 2021. Cement Australia Pty Ltd, the employer, sought approval of the agreement, which was negotiated with the Construction, Forestry, Maritime, Mining and Energy Union, the union. The dispute centred around the terms and conditions of employment of package products operators at the Pinkenba site. The Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement complied with the statutory requirements for enterprise agreements. Specifically, the Commission had to assess if the agreement was a "single, integrated, and workable" document that included all necessary terms and conditions of employment. Furthermore, the Commission considered whether the agreement had been negotiated in good faith and if it provided for a fair and efficient workplace. The Commission also examined whether the agreement met the "better off overall test" to ensure that employees would not be worse off by the terms of the agreement.

In delivering its decision, the Commission carefully reviewed the agreement's provisions and the negotiation process. The Commission found that the agreement was a single, integrated, and workable document that addressed the terms and conditions of employment comprehensively. It was determined that the agreement had been negotiated in good faith, and it provided for a fair and efficient workplace. Additionally, the Commission concluded that the agreement satisfied the "better off overall test" as employees would not be worse off under the new terms. As such, the Commission approved the Cement Australia Package Products Operators Pinkenba Enterprise Agreement 2021.

The Fair Work Commission approved the Cement Australia Package Products Operators Pinkenba Enterprise Agreement 2021, finding that it met all statutory requirements for enterprise agreements under the Fair Work Act 2009. The Commission determined that the agreement was a single, integrated, and workable document, had been negotiated in good faith, provided for a fair and efficient workplace, and satisfied the "better off overall test". Consequently, the agreement was approved and is now in effect.

Cement Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established