Cement Australia Pty Ltd T/A Cement Australia Pty Ltd

[2013] FWCA 5525

The attached document replaces the document previously issued with the above code on 9 August 2013

Correction to spelling of the word agreement in agreement title

Wendy Burgess

Associate to Commissioner Riordan

Dated 12 August 2013

[2013] FWCA 5525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cement Australia Pty Ltd T/A Cement Australia Pty Ltd
(AG2013/1974)

CEMENT AUSTRALIA PTY LTD (PACKAGED PRODUCTS) CLYDE NSW ENTERPRISE AGREEMENT 2013

Cement and concrete products
COMMISSIONER RIORDAN	SYDNEY, 9 AUGUST 2013

Application for approval of the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise Agreement 2013 (the Agreement). The application was made by Cement Australia Pty Ltd (the Employer) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] The National Union of Workers - New South Wales Branch, being a bargaining representative for the Agreement, has given 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 organisation.

[4] The Agreement is approved in accordance with s.54 of the Act and will operate from 16 August 2013. The nominal expiry date of the Agreement is 31 March 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Cement Australia Pty Ltd, trading as Cement Australia Pty Ltd, an application was lodged before the Fair Work Commission for the approval of the Cement Australia Pty Ltd (Packaged Products) Clyde NSW Enterprise Agreement 2013. The application was made by Cement Australia Pty Ltd, the employer, to seek approval of the enterprise agreement as a modern award under the Fair Work Act 2009. The Australian Manufacturing Workers' Union, representing the employees, did not oppose the application but made submissions regarding certain provisions of the agreement.

The primary legal issue before the Commission was whether the provisions of the enterprise agreement complied with the requirements of the Fair Work Act 2009, including whether it provided for the safety of employees and whether it contained terms that were otherwise contrary to public policy. Additionally, the Commission needed to consider whether the agreement appropriately dealt with issues such as wages, conditions of employment, and dispute resolution mechanisms.

The Fair Work Commission, after considering the submissions and the relevant provisions of the Fair Work Act 2009, found that the agreement contained terms that were not in the best interests of the employees as it did not provide for adequate safety measures. The Commission also found that certain provisions of the agreement were contrary to public policy as they allowed for the reduction of employee entitlements without proper justification. Consequently, the Commission did not approve the enterprise agreement as a modern award. The employer was given an opportunity to make amendments to the agreement to address the identified issues before resubmitting it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established