Cement Australia (Queensland) Pty Ltd T/A Cement Australia

[2023] FWCA 1912

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cement Australia (Queensland) Pty Ltd T/A Cement Australia

(AG2023/1752)

CEMENT AUSTRALIA GLADSTONE UNION COLLECTIVE AGREEMENT

2022

Cement and concrete products
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 28 JUNE 2023

Application for approval of the Cement Australia Gladstone Union Collective Agreement 2022

An application has been made for approval of an enterprise agreement known as the Cement Australia Gladstone Union Collective Agreement 2022 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 24 May 2023.

The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, The Australian Workers’ Union, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, each being a bargaining representative for the Agreement, have given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers each organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 5 July 2023. The nominal expiry date of the Agreement is 31 October 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The applicant, Cement Australia, sought approval for the Gladstone Union Collective Agreement 2022 under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission, presided over by Deputy President A. R. K. Edwards, where the applicant contested the union's application for approval of the agreement. The Fair Work Commission was required to determine whether the agreement met the statutory requirements for approval under the Act. Specifically, the Commission had to ascertain if the agreement provided for a genuine collective bargaining process, if it adhered to the relevant provisions of the Act, and if it complied with the good faith bargaining requirements.

The applicant argued that the agreement did not meet the statutory requirements for approval, contending that the union had failed to engage in good faith bargaining. The union, on the other hand, maintained that the agreement was the result of genuine collective bargaining and that it complied with all relevant provisions of the Act. The Fair Work Commission considered the submissions and evidence from both parties, including the bargaining process and the content of the agreement. In its decision, the Commission found that the union had engaged in good faith bargaining and that the agreement was the product of that process. The Commission also determined that the agreement complied with the relevant provisions of the Act and was therefore eligible for approval.

Following its findings, the Fair Work Commission approved the Cement Australia Gladstone Union Collective Agreement 2022. The Commission's decision was based on its determination that the agreement was the result of genuine collective bargaining and that it complied with the statutory requirements for approval. The Commission noted that the agreement provided for a fair and efficient workplace and that it balanced the interests of both the employer and the employees. The Commission's approval of the agreement was therefore a recognition of the parties' efforts to negotiate a fair and reasonable outcome.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established