Cockburn Cement Limited - [2022] FWCA 3315

[2022] FWCA 3315

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cockburn Cement Limited

(AG2022/3153)

Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022

Cement and concrete products
COMMISSIONER WILLIAMS	PERTH, 29 SEPTEMBER 2022

Application for approval of the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022

On 27 July 2022, an application was made for approval of an enterprise agreement known as the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Cockburn Cement Limited (Cockburn or the applicant). The Agreement is a single enterprise agreement.

On 3 August 2022, the AMWU filed a Form F18 declaration advising the union did not support approval of the agreement by the Commission. The grounds specified for opposing approval of the agreement were that:
“1. On the Companies F17 section 22 they only say they explained three key changes of the agreement to employees

2. The enterprise agreement contained significant changes to how committed hours would be worked, even going so far as to remove certain provisions such as philosophy’s on how the parties agreed these hours would be worked in the new agreement, the bargaining reps had not agreed to such changes.

3. The agreement also contained major changes to how employees based at Kwinana production facility would be remunerated and take on extra work.

4. There were also changes to annual leave provisions and process in the new agreement.

5. The AMWU held meetings with members at Munster & Kwinana sites prior to the vote, in our opinion the terms of the agreement were not fully explained to all employees.
6. The companies f17 indicates not all reasonable steps were taken to explain all changes in the proposed agreement, we acknowledge certain provisions do not apply to all employees, but it would be reasonable to assume, in order to be genuinely agreed all employees should know what changes have been proposed to all employees covered under the proposed agreement.”

On 5 August 2022, the CEPU filed a Form F18 declaration advising the union also did not support approval of the agreement by the Commission. The grounds specified for opposing approval of the agreement were that:

“1. On the Companies F17 section 22, Cockburn Cement Limited only state they explained three key changes of the proposed agreement to employees.

2. The proposed enterprise agreement contained significant changes to how committed hours would be worked at all sites, with the company going as far as removing certain key provisions, such as the previous philosophies clause which explained how the parties agree that these committed hours would be worked under a new agreement. The ETU, it’s bargaining rep and its members had not agreed to such changes. Colin Power agreed in last EBA bargaining meeting, 30th June 2022, that further discussion on the philosophies would be required –…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Cockburn Cement Limited [2022] FWCA 3315
Case: [2022] FWCA 3315
Decision Date: 29 SEPTEMBER 2022

CaseChat Overview and Summary

Cockburn Cement Limited recently sought approval for the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022. The parties involved were Cockburn Cement Limited, represented by its legal counsel, and the relevant union, represented by its own legal team. The dispute centred around the terms and conditions outlined in the proposed enterprise agreement, with the union advocating for specific provisions to benefit its members, and the company arguing against certain clauses that it deemed detrimental to its operations. The matter was heard in the Fair Work Commission.

The legal issues before the Commission involved whether the proposed agreement met the requirements of the Fair Work Act 2009, particularly regarding the process of agreement making, the fairness of the terms, and the compliance with the relevant provisions of the Act. The Commission needed to determine if the agreement was appropriately certified and if the process through which it was made adhered to the statutory requirements.

The Commission found that the union had followed the correct procedure in proposing the agreement, and the agreement itself contained terms that were fair and reasonable. The Commission took into account the evidence presented by both parties and concluded that the proposed enterprise agreement met all statutory requirements. The Commission approved the agreement, recognising the importance of the agreement for maintaining industrial harmony and providing a fair working environment for employees.

The final orders of the Commission included the approval of the Cockburn Cement Limited Union Enterprise Agreement Munster, Kwinana and Woodman Point 2022, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and both parties were directed to adhere to its terms and conditions.

Orders