Hanson Construction Materials Pty Ltd

[2021] FWCA 4669

[2021] FWCA 4669

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2021/6237)

HANSON CONSTRUCTION MATERIALS PTY LTD SOUTH EAST QUEENSLAND CONCRETE BATCHERS ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
COMMISSIONER LEE	MELBOURNE, 2 AUGUST 2021

Application for approval of the Hanson Construction Materials Pty Ltd South East Queensland Concrete Batchers Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd South East Queensland Concrete Batchers Enterprise Agreement 2021 (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] 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.

[3] Subject to the undertakings referred to above, 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.

[4] I note that the notice of employee representational rights (NERR) provided to employees stated that the name of the proposed enterprise agreement is the “Hanson Construction Materials Pty Ltd, Northern Region Metro Concrete Batchers Enterprise Agreement 2021”. The name of the Agreement is in fact the Hanson Construction Materials Pty Ltd South East Queensland Concrete Batchers Enterprise Agreement 2021. As such, the NERR does not contain the content prescribed by the Fair Work Regulations 2009 in accordance with s.174(1A) of the Act. The Employer made submissions in relation to these errors which I have considered. Namely, that:

“The title on the NERR was taken from the previous EA with the change in the year to 2021.  The Supply Chain Manager suggested the title to be changed to make it more specific to South East Queensland, as the batchers work in areas other than just Metro including all of Southeast Queensland.  The committee was supportive of this change in title.”

[5] I am satisfied having regard to those submissions and the Full Bench decision in Huntsman Chemical Company Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others 1

that the above matter constitutes minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[6] Accordingly, notwithstanding the matter identified in paragraph [4] above, I am satisfied that the Agreement has been genuinely agreed to by the employees covered by the Agreement within the meaning of s.188 of the Act.

[7] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 5.3.2 – Personal/Carer’s Leave.

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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 August 2021. The nominal expiry date of the Agreement is 5 July 2024.

COMMISSIONER

1   [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

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Annexure A