Holcim (Australia) Pty Limited

[2024] FWCA 2136

[2024] FWCA 2136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Limited

(AG2024/1893)

HOLCIM AUSTRALIA PTY LIMITED GOSNELLS QUARRY AGREEMENT 2024

Quarrying industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 13 JUNE 2024

Application for approval of the Holcim Australia Pty Limited Gosnells Quarry Agreement 2024

1. Holcim (Australia) Pty Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Holcim Australia Pty Limited Gosnells Quarry Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

1. On the basis of the material contained in the application and accompanying declarations, 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.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Applicant has opted to rely on the National Employment Standards (NES) precedence clause at clause 2.3 of the Agreement to address the following issues:

(a)Clause 12 of the Agreement appears to state that if an employee is absent for a period of three days without the consent of the company and without notification to the company, this shall be evidence that the employee has abandoned their employment. It then states that the termination shall operate from the last attendance at work or the last day’s absence in respect of which consent was granted, or the date of the last absence in respect of which notification was given to the company, whichever is later. This appears to be inconsistent with the NES at s 117 of the Act (see Bienias v Ilex Pipelines Australia Pty Limited [2017] FWCFB 38 at [58]).

(b)Clause 37 of the Agreement appears to provide an exhaustive list of public holidays and does not include any other day, or part day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday as required under s 115(1)(b) of the Act.

1. The Agreement was approved on 13 June 2024 and, in accordance with s 54, will operate from 20 June 2024.  The nominal expiry date of the Agreement is 27 May 2027.

DEPUTY PRESIDENT

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