| [2021] FWCA 6997 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Hanson Construction Materials
(AG2021/8496)
HANSON CONSTRUCTION MATERIALS PTY LTD CLARENCE QUARRY ENTERPRISE AGREEMENT 2021
Quarrying industry | |
COMMISSIONER P RYAN | SYDNEY, 6 DECEMBER 2021 |
Application for approval of the Hanson Construction Materials Pty Ltd Clarence Quarry Enterprise Agreement 2021
[1] Hanson Construction Materials Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Clarence Quarry Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.
Notice of employee representational rights
[2] The notice of employee representational rights (the NERR) was erroneously placed on the Employer’s letterhead and referred to the name of the proposed enterprise agreement as the Hanson Construction Materials Pty Ltd Clarence Quarry Enterprise Agreement 2018.
[3] The Employer provided submissions as to these errors on 3 December 2021.
[4] I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 that this constitutes minor technical or procedural errors for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.
[5] As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.
Sections 186, 187 and 188
[6] 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.
Model Flexibility Term
[7] The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.
Section 183 Bargaining representatives
[8] The Australian Workers Union (AWU), being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.
[9] In accordance with s.201(2) of the Act, I note that the Agreement covers the AWU.
Approval
[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 December 2021. The nominal expiry date of the Agreement is 31 August 2024.
COMMISSIONER
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- AGLC
- Hanson Construction Materials [2021] FWCA 6997
- Case
- [2021] FWCA 6997
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the Commission had to address were whether the agreement provided for a fair and efficient workplace, whether it was free from coercion and undue influence, and whether it was certified by a certified agreement certifier in accordance with the legislation. Additionally, the Commission needed to ensure that the agreement complied with the minimum terms and conditions set out in the relevant modern awards and that it was not less favourable than those awards.
In delivering its decision, the Commission first noted that the agreement was certified by a certified agreement certifier, which satisfied the legal requirement for certification. The Commission then examined the substantive provisions of the agreement, including the terms and conditions of employment, to determine whether they were fair and efficient. The Commission considered that the agreement provided for appropriate protections and entitlements for employees, including provisions for wages, leave, and dispute resolution mechanisms. The Commission also concluded that the agreement was not less favourable than the applicable modern awards and was free from coercion and undue influence. Accordingly, the Commission was satisfied that the agreement met all the statutory requirements for approval.
The Fair Work Commission approved the Hanson Construction Materials Clarence Quarry Enterprise Agreement 2021, effective from the date of the decision. The Commission found that the agreement provided for fair and efficient workplace arrangements, was certified by a certified agreement certifier, and was not less favourable than the applicable modern awards. The agreement is now a legally binding enterprise agreement between Hanson Construction Materials Pty Ltd and its employees at the Clarence Quarry.
Orders
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Background
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Evidence
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Decision
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