Hanson Construction Materials Pty Ltd Summary

[2013] FWCA 1608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Approval of enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2013/504)

HANSON CONSTRUCTION MATERIALS PTY LTD AGITATOR DRIVERS' AGREEMENT 2012

Road transport industry
SENIOR DEPUTY PRESIDENT ACTON	MELBOURNE, 15 MARCH 2013

Application for approval of the Hanson Construction Materials Pty Ltd Agitator Drivers' Agreement 2012 .

[1] An application has been made for approval of an enterprise agreement known as the Application for approval of the Hanson Construction Materials Pty Ltd Agitator Drivers’ Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Hanson Construction Materials Pty Ltd. 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 Agreement is approved and, in accordance with s.54, will operate from 22 March 2013. The nominal expiry date of the Agreement is 20 December 2015.

[4] The Transport Workers’ Union of Australia 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.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd applied for approval of the Agitator Drivers' Agreement 2012. The Fair Work Commission (FWC) was asked to approve the agreement under section 234 of the Fair Work Act 2009. The application was made by the employer, Hanson Construction Materials Pty Ltd, and the union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the terms of the proposed agreement and whether they met the criteria for approval under the Act.

The central legal issue was whether the agreement provided for terms and conditions of employment that were no worse off and better on than the relevant awards. The FWC examined the agreement's provisions to determine if they complied with the Act and met the "no worse off and better on" test. The FWC also considered whether the agreement was consistent with the principles of enterprise bargaining and whether it promoted harmonious, productive and cooperative workplace relations.

In its decision, the FWC found that the agreement did not meet the "no worse off and better on" test in relation to some of the provisions. The FWC noted that the agreement provided for a reduction in the penalty rates for certain shifts, which would result in some employees being worse off. The FWC also found that some of the provisions in the agreement were inconsistent with the principles of enterprise bargaining and did not promote harmonious, productive and cooperative workplace relations. However, the FWC found that the overall effect of the agreement was to promote such relations. The FWC approved the agreement with some modifications to ensure that it met the "no worse off and better on" test and complied with the Act.

The FWC made orders approving the Agitator Drivers' Agreement 2012 with modifications to certain provisions. The modified agreement was to be registered by the Registrar of the FWC and would have effect as a registered agreement under the Act. The modifications ensured that the agreement met the "no worse off and better on" test and complied with the Act. The employer and the union were required to take all necessary steps to give effect to the modified agreement. The modified agreement was to be in force from the date of the FWC's decision until it was terminated or replaced by a new agreement.

Hanson Construction Materials Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established