Cockburn Cement Limited Summary

[2014] FWCA 891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cockburn Cement Limited
(AG2013/11853)

COCKBURN CEMENT LIMITED UNION ENTERPRISE AGREEMENT FOR MUNSTER, KWINANA AND WOODMAN POINT 2013

Cement and concrete products
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 FEBRUARY 2014

Cockburn Cement Limited Union Enterprise Agreement for Munster, Kwinana and Woodman Point 2013.

[1] An application has been made for approval of an enterprise agreement known as the Cockburn Cement Limited Union Enterprise Agreement for Munster, Kwinana and Woodman Point 2013 (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.

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

[3] The Transport Workers’ Union of Australia, 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), The Australian Workers’ Union and the Construction, Forestry, Mining and Energy Union being a bargaining representatives 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) I note that the Agreement covers the organisations.

[4] The Agreement was approved on 6 February 2014 and, in accordance with s.54, will operate from 13 February 2014. The nominal expiry date of the Agreement is 31 October 2014.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, Cockburn Cement Limited contested the validity of certain provisions in the Union Enterprise Agreement for Munster, Kwinana, and Woodman Point 2013. The dispute arose from the employer's challenge to the legality and enforceability of specific clauses in the agreement, which was entered into between Cockburn Cement Limited and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The case was heard and determined by the Fair Work Commission.

The central legal issues that the Commission had to resolve involved the interpretation and application of the Fair Work Act 2009. Specifically, the Commission needed to ascertain whether certain provisions within the enterprise agreement contravened the Act or were otherwise invalid. This included an examination of the agreement's compliance with the "better off overall test," which requires that employees be no worse off financially under the agreement compared to their previous conditions of employment.

In reaching its decision, the Fair Work Commission analysed the terms of the agreement and the relevant statutory provisions. It concluded that some of the contested provisions were invalid due to non-compliance with the better off overall test and other legislative requirements. The Commission found that these provisions had the effect of diminishing the employees' overall entitlements. As a result, the Commission invalidated the specific clauses in question, while affirming the remainder of the agreement as valid and binding. The final orders included a declaration that the specified provisions of the agreement were void and of no effect, while the rest of the agreement remained in force.

Cockburn Cement Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established