Hanson Construction Materials Pty Ltd Summary

[2024] FWCA 1333

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd

(AG2024/903)

HANSON CONSTRUCTION MATERIALS PTY LTD SOUTH EAST QUEENSLAND MAINTENANCE ENTERPRISE AGREEMENT 2024

Building, metal and civil construction
DEPUTY PRESIDENT DOBSON	BRISBANE, 15 APRIL 2024

Application for approval of the Hanson Construction Materials Pty Ltd South East Queensland Maintenance Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd South East Queensland Maintenance Enterprise Agreement 2024 (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 Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 5.3 – Personal/Carers Leave.
· Clause 5.6 – Compassionate Leave.

However, noting the undertakings provide for an NES precedent clause to be part 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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 14 April 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Hanson Construction Materials Pty Ltd applied for approval of the South East Queensland Maintenance Enterprise Agreement 2024. The application was contested by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute centred on the terms and conditions outlined in the proposed enterprise agreement, with the CFMEU arguing that certain provisions did not comply with relevant industrial instruments and statutory provisions. The Commission was required to determine whether the agreement met the statutory criteria for approval, including whether it provided for a fair and efficient workplace and whether it complied with the Fair Work Act 2009.

The central legal issues before the Commission involved the interpretation of the Fair Work Act and the Fair Work (Registered Organisations) Act 2009, particularly in relation to the agreement's compliance with the "better off overall test" and the "no disadvantage test". The Commission needed to examine whether the proposed agreement provided employees with outcomes that were at least as good as their current entitlements under the applicable awards and whether it unfairly disadvantaged any group of employees. The Commission also considered whether the agreement complied with the principles of good faith bargaining and procedural fairness.

In delivering its decision, the Commission assessed the agreement's provisions against the statutory criteria. It found that the proposed agreement met the better off overall test, as it provided employees with improved terms and conditions compared to their existing entitlements. The Commission also determined that the agreement did not disadvantage any group of employees and complied with the no disadvantage test. The Commission concluded that the agreement was fair and efficient and met the statutory requirements for approval. Accordingly, the Commission approved the Hanson Construction Materials Pty Ltd South East Queensland Maintenance Enterprise Agreement 2024.

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