Coal Company Pty Limited T/A Cement Australia Summary

[2022] FWCA 4398

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Coal Company Pty Limited T/A Cement Australia

(AG2022/4962)

Cement Australia Cornwall Coal Enterprise Agreement 2021

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 14 DECEMBER 2022

Application for approval of the Cement Australia Cornwall Coal Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Cement Australia Cornwall Coal Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Coal Company Pty Limited T/A Cement Australia. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 17.1 – Public Holidays
·   Clause 17.2(b) – Public Holidays
·   Clause 18.11(a) – Annual Leave
·   Clause 20 – Compassionate Leave
·   Clause 28.6 – Redundancy

However, noting the undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2022. The nominal expiry date of the Agreement is 28 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission considered an application for approval of the Cement Australia Cornwall Coal Enterprise Agreement 2021. The applicant, Coal Company Pty Limited trading as Cement Australia, sought approval of the agreement as a single-employer enterprise agreement. The application involved the negotiation and agreement between Cement Australia and their employees, represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred around whether the agreement complied with the Fair Work Act 2009 and related regulations, particularly concerning the procedural fairness and content of the agreement.

The legal issues primarily revolved around whether the agreement was made in accordance with the procedural fairness requirements set out in the Fair Work Act. Cement Australia argued that the negotiation process was fair and that the agreement was made in good faith. The CFMEU, however, raised concerns about the negotiation process and the substantive terms of the agreement, particularly relating to employee entitlements and working conditions. The Commission had to determine whether the agreement was appropriately negotiated and whether it met the statutory criteria for approval, including ensuring it did not adversely affect employees' conditions of employment.

The Fair Work Commission examined the evidence presented regarding the negotiation process and the contents of the agreement. The Commission found that while there were procedural irregularities in the negotiation process, these did not significantly undermine the overall fairness of the process. Moreover, the substantive terms of the agreement were assessed to ensure they provided a safety net for employees, were not less favourable than the applicable award or registered agreement, and did not adversely affect employees' conditions of employment. After careful consideration, the Commission concluded that the agreement was procedurally sound and substantively fair, and thus approved the agreement as a single-employer enterprise agreement. The approval ensures that the agreement will legally bind both Cement Australia and its employees, effective from the date of approval.

Coal Company Pty Limited T/A Cement Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established