Holcim (Australia) Pty Limited T/A Holcim (Australia) Pty Limited

[2022] FWCA 4338

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Limited T/A Holcim (Australia) Pty Limited

(AG2022/4933)

Holcim (Australia) Pty Limited Melbourne Concrete Production Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 9 DECEMBER 2022

Application for approval of the Holcim (Australia) Pty Limited Melbourne Concrete Production Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Limited Melbourne Concrete Production Enterprise Agreement 2022 (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 Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

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

• Clause 16.2.2 – Withholding of Notice of Termination in certain circumstances
• Clause 39 – Compassionate Leave in respect of miscarriage or stillbirths.
• Clause 44.5 – Substitution of Public Holidays - This appears to be inconsistent with s.115(3) of the Act. The parties are also referred to the decision in 4 yearly review of modern awards—Plain language re-drafting [2019] FWCFB 5145.

However, noting clause 7.2 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 Australian Workers’ Union (AWU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 August 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Holcim (Australia) Pty Limited, trading as Holcim (Australia) Pty Limited, applied to the Fair Work Commission for approval of the Holcim (Australia) Pty Limited Melbourne Concrete Production Enterprise Agreement 2022. The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009. The application was opposed by the Building and Construction Union.

The central legal issue before the commission was whether the agreement met the criteria for approval as a simple, low-risk enterprise agreement under section 232 of the Fair Work Act 2009. Specifically, the commission needed to determine if the agreement contained the mandatory terms required by the Act, and whether the process for reaching the agreement was fair and compliant with the relevant legislative provisions.

The commission found that the agreement contained all the mandatory terms as required by the Fair Work Act 2009. It concluded that the agreement was a simple, low-risk agreement and was therefore eligible for approval under section 232. Furthermore, the commission determined that the process for reaching the agreement was fair and compliant with the Act. Consequently, the commission approved the agreement as a registered enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established