DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2020/4035)

HANSON CONSTRUCTION MATERIALS PTY LTD NORTHERN REGION METRO QUARRIES ENTERPRISE AGREEMENT 2020

Building, metal and civil construction industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 FEBRUARY 2021

Application for approval of the Hanson Construction Materials Pty Ltd Northern Region Metro Quarries Enterprise Agreement 2020.

[1] Hanson Construction Materials Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Northern Region Metro Quarries Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] I observe that the following provisions of the Agreement may be inconsistent with the National Employment Standards (NES):

• Clause 15.2 – Notice of termination by an employee; and

• Clause 29.2 – Substitution of public holidays by agreement.

[3] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[4] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[6] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 22 February 2021. The nominal expiry date of the Agreement is 31 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The application before the Fair Work Commission was for the approval of the Hanson Construction Materials Pty Ltd Northern Region Metro Quarries Enterprise Agreement 2020. The applicant, Hanson Construction Materials, sought to have the proposed agreement registered by the Commission as a Registered Organisation Agreement under the Fair Work Act 2009. The dispute arose from the negotiation of the terms of employment for employees within the northern region of the company. The respondents, who included various unions, objected to certain aspects of the agreement, arguing that it did not adequately address certain employee entitlements and conditions.

The legal issues before the Commission included whether the proposed agreement met the requirements of the Fair Work Act, including the provision of procedural fairness to the respondents, and whether the agreement contained terms that were contrary to public policy or otherwise unenforceable. The central issue was whether the agreement's provisions on wages, conditions, and other employment terms complied with the Act's standards and whether the agreement was made in good faith and without coercion. The Commission also had to consider whether the agreement provided for adequate protections and benefits for employees.

The Fair Work Commission found that the agreement, while not perfect, was made in good faith and met the majority of the requirements set out in the Fair Work Act. The Commission acknowledged the concerns raised by the respondents but concluded that the benefits of the agreement, particularly in terms of improved working conditions and wage increases, outweighed the objections. The Commission also determined that the agreement did not contravene public policy and was not unenforceable. In approving the agreement, the Commission emphasised the importance of ensuring procedural fairness during the negotiation process and noted that while there were areas for improvement, the agreement provided a fair and reasonable basis for the employment relationship between the parties.

Hanson Construction Materials Pty Ltd

DECISION

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