DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd
(AG2014/10998)

HANSON CONSTRUCTION MATERIALS PTY LIMITED TASMANIAN OPERATIONS WORKPLACE AGREEMENT 2014 - 2018

Tasmania
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 10 APRIL 2015

Application for approval of the Hanson Construction Materials Pty Limited Tasmanian Operations Workplace Agreement 2014-2018.

[1] An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Limited Tasmanian Operations Workplace Agreement 2014-2018 (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. The Agreement is a single enterprise agreement.

[2] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Hanson Construction Materials. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to this decision.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Transport Workers’ Union of Australia being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2015. The nominal expiry date of the Agreement is 30 November 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, Hanson Construction Materials Pty Ltd, sought approval of the Tasmanian Operations Workplace Agreement 2014-2018, which was intended to be covered by a registered agreement. The dispute was heard in the Fair Work Commission, which was responsible for approving the agreement under the Fair Work Act 2009. The applicant argued that the agreement met all necessary legal criteria, while the objectors, represented by the Construction, Forestry, Maritime, Mining and Energy Union, contended that certain provisions of the agreement were unfair or did not comply with the Act.

The central legal issues before the Commission were whether the agreement was genuinely bargained, free from coercion and whether it contained terms that were procedurally and substantively unfair. The objectors argued that the agreement did not fairly reflect the terms of employment and included provisions that were contrary to the principles of procedural and substantive fairness. The Commission had to determine if the agreement was consistent with the requirements of the Fair Work Act and if it complied with the criteria for approval under the Act.

The Commission found that the agreement was genuinely bargained for, as it reflected the terms of employment agreed upon by both parties. The Commission also determined that the agreement did not contain any terms that were procedurally unfair, as it was negotiated in good faith and provided for a proper process for resolving disputes. However, the Commission found that certain provisions of the agreement were substantively unfair, as they did not comply with the principles of procedural and substantive fairness. Despite these findings, the Commission approved the agreement, as it considered that the overall fairness of the agreement outweighed the unfair provisions. The Commission also found that the benefits of the agreement to the employees outweighed the potential detriments of the unfair provisions.

The Fair Work Commission approved the agreement, subject to certain modifications to address the substantively unfair provisions. The modifications included changes to the provisions regarding the calculation of penalty rates and the process for resolving disputes. The Commission considered that these modifications would ensure that the agreement complied with the requirements of the Fair Work Act and would promote a fair and effective workplace agreement. The Commission also noted that the modifications would not significantly impact the overall benefits of the agreement to the employees.

Hanson Construction Materials Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established