Flyash Australia Pty Limited T/A Flyash Australia

[2024] FWCA 3602

[2024] FWCA 3602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flyash Australia Pty Limited T/A Flyash Australia

(AG2024/3343)

FLYASH AUSTRALIA PTY LIMITED ENTERPRISE AGREEMENT 2023

Cement and concrete products
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 16 OCTOBER 2024

Application for approval of the Flyash Australia Pty Limited Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Flyash Australia Pty Limited Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Flyash Australia Pty Limited T/A Flyash Australia (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at 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. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. Pursuant to s 205A(2) of the Act, the workplace delegates’ rights term prescribed by the Cement, Lime and Quarrying Award 2020 is taken to be a term of the Agreement.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

·   Compassionate leave – stillbirth consideration: The entitlement to compassionate leave provided by Clause 13.3.3 of the Agreement does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

·   Notice of termination – failure to provide notice: Clause 14.3 of the Agreement provides that if an employee fails to give notice, the Company may withhold from any monies due to the Employee on termination under this Agreement or the NES, an amount not exceeding the amount the Employee would have been paid under this Agreement in respect of the period of notice required to by the clause less any period of notice actually given by the Employee. This appears to restrict an employees’ NES entitlements upon termination.

1. The Mining and Energy Union being a bargaining representative 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) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 23 October 2024. The nominal expiry date of the Agreement is 30 September 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE526398  PR780280>

Annexure A