Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials

[2021] FWCA 6612

[2021] FWCA 6612

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials
(AG2021/8126)

HANSON CONSTRUCTION MATERIALS PTY LTD WESTERN AUSTRALIAN COUNTRY QUARRIES ENTERPRISE AGREEMENT 2021

Quarrying industry
COMMISSIONER PLATT	ADELAIDE, 10 NOVEMBER 2021

Application for approval of the Hanson Construction Materials Pty Ltd Western Australian Country Quarries Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Hanson Construction Materials Pty Ltd Western Australian Country Quarries Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Hanson Construction Materials Pty Ltd T/A Hanson Construction Materials (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 8 November 2021 and was determined on the papers.

[3] There are four National Employment Standards (NES) issues that require comment:

•  Clause 5.8 of the Agreement states that if an employee fails to give the required notice, or having given or been given the required notice, and employee leaves before the end of the notice period, that employee forfeits the entitlement to any monies owing to them under the Agreement. To the extent that deductions are made from ‘monies’ rather than ‘wages’, clause 5.8 may be inconsistent with an employee’s entitlements on termination under the NES.

•  Clause 10.1.1 of the Agreement expresses the entitlement to annual leave in hours rather than weeks. This may result in a lesser entitlement to annual leave when compared to the NES.

•  Clause 11.1 of the Agreement states that leave will accrue pro rata on a monthly basis. This appears inconsistent with s.96(2) of the Act, which states that leave accrues progressively during a year of service according to the employee’s ordinary hours of work.

•  Clause 22.2 of the Agreement states the redundancy provisions of the Agreement shall not apply where the company terminates a person’s employment because of misconduct that justifies dismissal, including malingering or neglect of duty. This may place greater limits than those contained in s.123 of the Act.

[4] The Applicant has provided a NES precedence undertaking which states that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

[5] The Applicant has submitted an undertaking in the required form dated 9 November 2021. The undertaking deals with the following topic:

•  The Applicant has inserted a National Employment Standards (NES) precedence clause.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 1 October 2025.

COMMISSIONER

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