DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Limited
(AG2016/5354)

HOLCIM (AUSTRALIA) PTY LIMITED MELBOURNE CONCRETE PRODUCTION AWU AGREEMENT 2016

Cement and concrete products
COMMISSIONER GREGORY	MELBOURNE, 18 NOVEMBER 2016

Application for approval of the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2016 (the Agreement). The application is made under s.185 of the Fair Work Act 2009 (the Act) by Holcim (Australia) Pty Limited. The Agreement is a single enterprise agreement.

[2] The Applicant has provided a written undertaking confirming the entitlement to an additional week of annual leave for shift workers, as defined. A copy of the undertaking is attached. I am satisfied that it will not cause financial detriment to any employee covered by the Agreement, and will not result in substantial changes to the Agreement. The undertaking is accordingly accepted and will now be taken to be a term of the Agreement as provided for by s.191 of the Act.

[3] In addition, the flexibility term contained in clause 46 of the Agreement does not comply with the requirements of s.203(7) of the Act in that it does not require the employer to ensure that a copy of any individual flexibility Agreement that has been agreed to, be given to the employee within 14 days. It also does not confirm that any arrangement agreed to under the flexibility term must only be about permitted matters, and must not include any unlawful terms. Therefore, in accordance with s.202(4) of the Act the model flexibility term set out in Schedule 2.2 of the Fair Work Regulations 2009 is taken to be a term of the Agreement.

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

[5] The Australian Workers’ Union, 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 therefore note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 November 2016. The nominal expiry date of the Agreement is 31 August 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Holcim (Australia) Pty Limited, the Fair Work Commission was tasked with considering an application for the approval of a new enterprise agreement. The applicant, Holcim (Australia) Pty Limited, sought to replace the existing Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2016 with a new agreement. The Australian Workers' Union (AWU) was the bargaining representative for the employees during the negotiation process.

The legal issues before the Commission centred on whether the new agreement met the criteria for approval as outlined in the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was made in good faith and if it provided for the terms and conditions of employment of the employees covered by the agreement. The Commission also had to ensure that the agreement allowed for proper and timely consultation, and that it did not contravene any provisions of the Act or any other relevant legislation.

The Commission found that the new agreement had been negotiated in good faith and that it contained appropriate terms and conditions for the employees. The Commission determined that there was sufficient consultation between the parties and that the agreement did not contravene any provisions of the Fair Work Act 2009 or any other relevant legislation. Consequently, the Commission approved the new enterprise agreement, which replaced the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2016. The new agreement came into effect from the date of the Commission's approval and binding determination.

Holcim (Australia) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established