Cockburn Cement Limited

[2023] FWCA 1901

[2023] FWCA 1901

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cockburn Cement Limited

(AG2023/1958)

COCKBURN CEMENT LIMITED DONGARA ENTERPRISE AGREEMENT 2023

Cement and concrete products
DEPUTY PRESIDENT MASSON	MELBOURNE, 28 JUNE 2023

Application for approval of the Cockburn Cement Limited Dongara Enterprise Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the Cockburn Cement Limited Dongara Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cockburn Cement Limited. The Agreement is a single enterprise agreement.

1. 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.

1. 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 Fair Work Act, that commenced operation on 6 June 2023.

1. 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 Fair Work 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 20 March 2023.

1. 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 Fair Work 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. Question 26.2 of the Form F17A provides that the Agreement was made on 9 June 2023.

1. 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.

1. I note that clause 32 may be inconsistent with the National Employment Standards (NES). The Applicant has provided a NES precedence clause as part of their written undertakings. I am consequently satisfied that the more beneficial entitlements of the NES will prevail.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union and the Australian Workers’ 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 these organisations.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 July 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE520505  PR763642>

Annexure A