Holcim (Australia) Pty Limited

[2024] FWCA 391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Limited

(AG2023/5514)

HOLCIM (AUSTRALIA) PTY LTD SOUTH WEST GIPPSLAND CONCRETE VIC AGREEMENT 2023

Cement and concrete products
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 30 JANUARY 2024

Application for approval of the Holcim (Australia) Pty Ltd South West Gippsland Concrete VIC Agreement 2023

An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Ltd South West Gippsland Concrete VIC Agreement 2023 (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.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

The Applicant incorrectly completed and filed a Form F17B. The correct form for agreement applications with a notification date prior to 6 June 2023, and an agreement which

is made on or after 6 June 2023, is a Form F17A. Pursuant to s.586 of the Act, I am satisfied that the irregularity in the form should be waived and that it is appropriate to do so.

The Employer has provided written undertakings. A copy of the undertakings is 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, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Australian Workers’ Union (AWU) 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 note that the Agreement covers the organisation. The AWU supports approval of the Agreement.

I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 38.5 – Public Holidays.

However, noting clause 8.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 February 2024. The nominal expiry date of the Agreement is 30 January 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, Holcim (Australia) Pty Limited applied for approval of the Holcim (Australia) Pty Ltd South West Gippsland Concrete VIC Agreement 2023. The applicant, a major cement manufacturer, sought to implement a new enterprise agreement to regulate the employment conditions of its employees in the South West Gippsland region. The proposed agreement included various terms and conditions, such as pay rates, leave entitlements, and working arrangements, aiming to address both parties' interests while maintaining a harmonious workplace.

The primary legal issue before the Commission was whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided for fair and reasonable terms and conditions, including pay rates and conditions, that were not less favourable than the applicable minimum standards. The Commission also had to ensure that the agreement was made in good faith and without the influence of any improper conduct.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed agreement met the necessary criteria for approval. The terms and conditions of the agreement were considered fair and reasonable, and there was no evidence of improper conduct influencing the bargaining process. The Commission approved the agreement, noting its balanced approach in addressing the interests of both employees and the employer. The decision was made in the spirit of promoting a cooperative and productive workplace.

The Commission issued an order approving the Holcim (Australia) Pty Ltd South West Gippsland Concrete VIC Agreement 2023, effective from the date of the decision. The agreement would now serve as the governing document for the employment conditions of Holcim's employees in the South West Gippsland region.

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