Hanson Construction Materials Pty Ltd

[2022] FWCA 2430

[2022] FWCA 2430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Hanson Construction Materials Pty Ltd

(AG2022/2332)

HANSON CONSTRUCTION MATERIALS PTY LTD - EASTERN REGION - NSW WILLIAMSDALE QUARRY OPERATORS', MAINTENANCE OPERATORS, AND DRIVERS' ENTERPRISE AGREEMENT 2022

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 20 JULY 2022

Application for approval of the HANSON CONSTRUCTION MATERIALS PTY LTD – EASTERN REGION - NSW WILLIAMSDALE QUARRY OPERATORS’, MAINTENANCE OPERATORS, AND DRIVERS’ ENTERPRISE AGREEMENT 2022

1. An application has been made for approval of an enterprise agreement known as the HANSON CONSTRUCTION MATERIALS PTY LTD – EASTERN REGION - NSW WILLIAMSDALE QUARRY OPERATORS’, MAINTENANCE OPERATORS, AND DRIVERS’ 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 Hanson Construction Materials Pty Ltd (Employer). The Agreement is a single enterprise agreement.

1. The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking 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.

1. I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 7.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES:

• Clause 8.8.2 of the Agreement provides that if the employee does not provide the required notice of termination, the employer may withhold monies due to the employee on termination under the NES. This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.
• Clause 8.7.5.4 of the Agreement provides for 4-week notification periods with respect to requests and responses to casual conversion, whereas s 66G of the Act provides a 21-day time frame for an employer to respond to such a request.
• Clause 8.12 of the Agreement provides that notice of inability to attend work must be given prior to the normal starting time “except in the most exceptional circumstances.” This may give rise an inconsistency with s 107(2) of the Act.
• Clause 21.2.6 of the Agreement provides that an employee is not entitled to redundancy pay where terminated due to malingering, neglect of duty, inefficiency or misconduct. This may be inconsistent with s 123(1)(b) of the Act and reg 1.07 of the Fair Work Regulations 2009 (Cth).

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 27 July 2022. The nominal expiry date of the Agreement is 1 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE516736  PR743954>

Annexure A