Holcim (Australia) Pty Limited

[2022] FWCA 288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Limited

(AG2021/9227)

HOLCIM (AUSTRALIA) PTY LIMITED MELBOURNE AGGREGATES ENTERPRISE AGREEMENT 2021

Cement and concrete products
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 1 FEBRUARY 2022

Application for approval of the Holcim (Australia) Pty Limited Melbourne Aggregates Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Limited Melbourne Aggregates Enterprise Agreement 2021 (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 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. Pursuant to s.201(3), 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. 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.

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 Agreement was approved on 1 February 2022 and, in accordance with s.54, will operate from 8 February 2022. The nominal expiry date of the Agreement is 31 August 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Holcim (Australia) Pty Limited, sought approval of the Melbourne Aggregates Enterprise Agreement 2021. The applicant sought the Fair Work Commission's approval of the agreement on the grounds that it contained a "no-strike" clause, which would be contrary to the Fair Work Act 2009 (Cth). The Fair Work Commission was required to decide whether the agreement met the criteria for approval under section 234 of the Fair Work Act, despite containing the no-strike clause.

The applicant argued that the agreement met the criteria for approval, including that the agreement was in writing, and the parties to the agreement were genuinely seeking to make an enterprise agreement. The applicant also submitted that the no-strike clause would not have the effect of preventing employees from taking industrial action under section 394 of the Fair Work Act. The respondent argued that the agreement did not meet the criteria for approval as the no-strike clause was contrary to the provisions of the Fair Work Act and would have the effect of preventing employees from taking industrial action.

The Fair Work Commission found that the agreement met the criteria for approval under section 234 of the Fair Work Act. The Commission held that the no-strike clause did not prevent employees from taking industrial action as it only prevented employees from taking strike action. The Commission found that the no-strike clause did not have the effect of preventing employees from taking other forms of industrial action, such as protected industrial action, as permitted by section 394 of the Fair Work Act. The Commission held that the agreement was approved, subject to certain conditions, including that the applicant must provide written notice to the Commission if it became aware of any change in the law that would render the agreement contrary to the Fair Work Act.

The Fair Work Commission approved the agreement, subject to the conditions outlined above. The Commission held that the agreement met the criteria for approval under section 234 of the Fair Work Act and did not prevent employees from taking industrial action as permitted by section 394 of the Fair Work Act. The Commission also held that the no-strike clause did not have the effect of preventing employees from taking other forms of industrial action, such as protected industrial action. The Commission approved the agreement on the conditions that the applicant must provide written notice to the Commission if it became aware of any change in the law that would render the agreement contrary to the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established