DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flyash Australia Pty Ltd
(AG2017/5540)

FLYASH AUSTRALIA PTY LIMITED ENTERPRISE AGREEMENT 2017

Cement and concrete products
COMMISSIONER JOHNS	SYDNEY, 5 APRIL 2018

Application for approval of the Flyash Australia Pty Limited Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Flyash Australia Pty Limited Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Flyash Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] 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.

[4] The Construction, Forestry, Maritime, Mining and Energy 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 April 2018. The nominal expiry date of the Agreement is 30 September 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Flyash Australia Pty Ltd was the subject of an application for the approval of the Flyash Australia Pty Limited Enterprise Agreement 2017 before the Fair Work Commission. The dispute involved the terms and conditions of employment set out in the proposed enterprise agreement, which was to be applicable to certain employees of Flyash Australia. The applicants, Flyash Australia, sought the commission's approval of the agreement to ensure its enforceability under the Fair Work Act 2009.

The primary legal issues before the commission were whether the agreement complied with the statutory requirements for enterprise agreements, and if it met the "better off overall test". This test requires that the employees, on balance, are not worse off financially under the proposed agreement compared to their existing conditions. Additionally, the commission had to consider whether the agreement provided for procedural fairness, and if the agreement was genuinely negotiated between the parties.

In its decision, the commission found that the proposed agreement satisfied the statutory requirements and met the better off overall test. The commission was satisfied that the agreement provided for procedural fairness and had been genuinely negotiated. The commission noted that the proposed agreement provided for certain improvements to the employees' conditions, including pay rates and conditions related to shift work and overtime. The commission concluded that the agreement was fair and reasonable, and approved it accordingly.

The final orders of the commission included the approval of the Flyash Australia Pty Limited Enterprise Agreement 2017, which was to be registered and enforceable under the Fair Work Act 2009. The agreement was to apply to the employees covered by the agreement, and the terms and conditions set out in the agreement were to replace the corresponding terms and conditions in the applicable award or previous enterprise agreement.

Flyash Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established