Hanson Construction Materials Pty Ltd Summary

[2023] FWCA 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd

(AG2023/2832)

HANSON CONSTRUCTION MATERIALS PTY LTD - NORTHERN REGION – COUNTRY ENTERPRISE AGREEMENT 2023-2026

Building, metal and civil construction industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 SEPTEMBER 2023

Application for approval of the Hanson Construction Materials Pty Ltd - Northern Region – Country Enterprise Agreement 2023-2026

An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd - Northern Region – Country Enterprise Agreement 2023-2026 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 11 August 2023.

I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 September 2023. The nominal expiry date of the Agreement is 31 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Hanson Construction Materials Pty Ltd and its employees represented by the Construction, Forestry, Maritime, Mining and Energy Union. The company sought approval of a proposed enterprise agreement for its Northern Region operations. The union objected to certain provisions, arguing they were not in the best interests of the employees. The Commission, led by Deputy President O'Brien, was tasked with assessing whether the agreement met the legal standards set out in the Fair Work Act 2009.

The primary legal issue was whether the agreement complied with the statutory requirements for enterprise agreements, particularly focusing on the "better off overall test" (BOOT). The union contended that certain clauses did not meet the BOOT, as they would negatively impact the employees' overall conditions. The company argued that the agreement was fair and reasonable, providing benefits that outweighed any detriments. The Commission had to determine if the proposed changes were genuinely aimed at improving the employees' conditions and not merely disadvantaging them.

After reviewing the evidence and submissions from both parties, the Commission concluded that the agreement did not meet the BOOT. The contested provisions were found to adversely affect the employees without providing sufficient benefits to offset these impacts. Deputy President O'Brien emphasised the need for enterprise agreements to genuinely improve employees' conditions, not merely change them. The Commission rejected the application for approval and directed the parties to further negotiate to address the union's concerns. The final orders required the parties to report back within a specified timeframe to demonstrate that a revised agreement had been reached, which met the statutory requirements.

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