Graymont (Australia) Pty Ltd

[2022] FWCA 2427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Graymont (Australia) Pty Ltd

(AG2022/2168)

Graymont (Australia) Pty Ltd Mole Creek EnterpriseAgreement 2022

Quarrying industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 19 JULY 2022

Application for approval of the Graymont (Australia) Pty Ltd Mole Creek Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Graymont (Australia) Pty Ltd Mole Creek Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Graymont (Australia) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

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.

Subject to the undertakings referred to above, and the material before the Commission, 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.

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

Clause 6.1.6 of the Agreement provides that annual leave shall be rostered and taken in minimum eight (8) hour periods, however s 88 of the Act does not provide for this limitation.
Clause 6.7.2 provides that public holidays may be substituted by agreement between the employer and a majority of affected employees, whereas s 115(3) of the Act provides that public holidays can be substituted by agreement between the employer and an individual employee.
Clause 3.5.7 provides that the employer may vary redundancy pay where the employer finds suitable alternative employment. However, the provision is not subject to an application to the Commission in accordance with s 120 of the Act.

The Construction, Forestry, Maritime, 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 26 July 2022. The nominal expiry date of the Agreement is 26 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Graymont (Australia) Pty Ltd, the employer, applied to the Fair Work Commission for the approval of the Mole Creek Enterprise Agreement 2022, which governs the terms and conditions of employment for employees at its Mole Creek quarry. The application was contested by the Tasmanian Teachers Union (the Union) on behalf of its members, who are employees of Graymont. The Union argued that the proposed agreement did not adequately protect employee entitlements and was not in the best interests of the employees.

The legal issues before the Fair Work Commission included whether the proposed enterprise agreement provided for the fair and equitable treatment of employees, whether it contained provisions that were contrary to the objectives of the Fair Work Act 2009, and whether it was in the best interests of the employees. The Union argued that the proposed agreement failed to adequately protect employee entitlements and contained provisions that were not in the best interests of the employees. The employer, on the other hand, argued that the proposed agreement provided for fair and equitable treatment of employees and was in their best interests.

The Fair Work Commission found that the proposed enterprise agreement did not adequately protect employee entitlements and contained provisions that were not in the best interests of the employees. The Commission held that the proposed agreement failed to provide for adequate protection of employee entitlements in relation to shift patterns, overtime, and leave. The Commission also found that the proposed agreement contained provisions that were contrary to the objectives of the Fair Work Act, including provisions that allowed for the unilateral termination of employees and the imposition of unreasonable disciplinary measures. The Commission concluded that the proposed agreement was not in the best interests of the employees and refused to approve it. The Fair Work Commission ordered that the application for approval of the proposed enterprise agreement be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established