Hanson Construction Materials Pty Ltd T/A Hanson

[2023] FWCA 1879

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd T/A Hanson

(AG2023/1742)

HANSON CONSTRUCTION MATERIALS PTY LTD VICTORIA COUNTRY OPERATIONS ENTERPRISE AGREEMENT 2022

Cement and concrete products
COMMISSIONER MIRABELLA	MELBOURNE, 26 JUNE 2023

Application for approval of the Hanson Construction Materials Pty Ltd Victoria Country Operations Enterprise Agreement 2022.

Hanson Construction Materials Pty Ltd T/A Hanson (the Applicant) has made an application for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Victoria Country Operations Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement and covers the Applicant and Hymix Australia Pty Ltd T/A Hymix (Hymix).

The Applicant and Hymix have provided written undertakings. Copies of the undertakings are 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

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.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Transport Workers’ Union of Australia and The Australian Workers’ Union, being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) and based on the declarations provided by the organisations, I note that the Agreement covers the organisations.

The Agreement was approved on 26 June 2023 and, in accordance with s.54, will operate from 3 July 2023. The nominal expiry date of the Agreement is 1 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Hanson Construction Materials Pty Ltd, trading as Hanson, sought approval of their Victoria Country Operations Enterprise Agreement 2022. The application was made to the Fair Work Commission, which was required to consider whether the agreement met the criteria under the Fair Work Act 2009. The dispute involved the terms and conditions of employment for workers under the proposed agreement, including issues of pay, hours of work, and other employment-related matters.

The primary legal issues before the Commission were whether the agreement fairly reflected the bargaining positions of the parties, provided for genuine bargaining, and met the procedural requirements set forth in the Fair Work Act. The Commission had to examine if the agreement contained all the mandated minimum terms and conditions, and if it was free from any unfair content that could undermine the workers' rights or the bargaining process.

The Commission found that the agreement was the product of genuine bargaining, as it reflected the respective positions of the employer and the employees, and contained all the mandated minimum terms and conditions. It also found that the agreement did not contain any unfair content, and it was procedurally sound. Therefore, the Commission approved the Hanson Construction Materials Pty Ltd Victoria Country Operations Enterprise Agreement 2022, effective from the date of the decision. This approval signifies that the agreement will govern the employment terms of the workers within the specified scope.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established