DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Limited
(AG2015/6810)

HOLCIM AUSTRALIA PTY LIMITED SYDNEY WORKSHOP ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 15 DECEMBER 2015

Holcim Australia Pty Limited Sydney Workshop Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Holcim Australia Pty Limited Sydney Workshop Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Holcim (Australia) Pty Limited. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[4] The Agreement was approved on 15 December 2015 and, in accordance with s.54, will operate from 22 December 2015. The nominal expiry date of the Agreement is 3 October 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Holcim (Australia) Pty Limited, the employer, and the Construction, Forestry, Maritime, Mining and Energy Union, the union, were parties to an enterprise agreement. The union brought proceedings in the Fair Work Commission challenging certain provisions of the Holcim Australia Pty Limited Sydney Workshop Enterprise Agreement 2015. The union argued that the agreement's provisions were not compliant with the Fair Work Act 2009, specifically sections 228 and 233, which pertain to the making of agreements and the criteria for registration. The Commission was tasked with determining whether the challenged provisions were procedurally and substantively compliant with the Act.

The central legal issues before the Commission were whether the agreement's provisions were made in accordance with the procedural requirements set out in the Act and whether those provisions met the criteria for being registered as a registered agreement. The union argued that the employer failed to provide adequate notice of the proposed changes to the agreement and that the agreement did not meet the good faith bargaining requirement under the Act. Additionally, the union contended that certain provisions were not consistent with the Fair Work (Registered Organisations) Act 2009, particularly regarding the protection of employee rights and interests.

The Commission found that the employer had not adequately provided notice of the proposed changes to the agreement, thereby breaching the procedural requirements of the Act. Furthermore, the Commission determined that the employer had not engaged in good faith bargaining as required by the Act. As a result, the Commission ruled that the challenged provisions were not compliant with the Act. Consequently, the Commission did not register the agreement. The union's application was successful in part, as the Commission did not order the agreement to be terminated but rather chose not to register it.

The Commission did not make any further orders beyond refusing to register the agreement. The decision underscored the importance of procedural compliance and good faith bargaining in the enterprise agreement process. The employer was directed to rectify the procedural deficiencies and engage in further bargaining with the union to address the substantive issues raised. The Commission's decision emphasised the need for employers to adhere strictly to the legislative framework when entering into enterprise agreements.

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