Holcim (Australia) Pty Ltd Summary

[2023] FWCA 2261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Ltd

(AG2023/2094)

HOLCIM AUSTRALIA PTY LIMITED LYNWOOD QUARRY ENTERPRISE AGREEMENT 2023

Quarrying industry
COMMISSIONER MIRABELLA	MELBOURNE, 21 JULY 2023

Application for approval of the Holcim Australia Pty Limited Lynwood Quarry Enterprise Agreement 2023.

Holcim (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Holcim Australia Pty Limited Lynwood Quarry Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the FW Act). 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 FW 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 FW 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 16 January 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 16 June 2023.

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, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The Agreement lodged contained errors and the Employer has requested that the Commission exercise its discretion to correct these errors pursuant to s.586 of the FW Act. I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the FW Act. On 18 July 2023, the Employer filed the attached amended version of the Agreement correcting the errors identified. The dates “21 May 2023”, “21 May 2024” and “21 May 2025” in both tables in Appendix A have been corrected to “1 May 2023”, “1 May 2024” and “1 May 2025”, respectively, in the attached amended version of the Agreement.

The Australian Workers’ Union, 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 Agreement covers the organisation.

The Agreement was approved on 21 July 2023 and, in accordance with s.54, will operate from 28 July 2023. The nominal expiry date of the Agreement is 1 May 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

In the Fair Work Commission, Holcim (Australia) Pty Ltd sought approval of the Holcim Australia Pty Limited Lynwood Quarry Enterprise Agreement 2023. The applicant was a cement manufacturer with a quarry at Lynwood, while the respondent was a trade union representing quarry workers. The agreement sought to regulate the terms and conditions of employment for the workers. The union argued that the agreement did not provide adequate protections for employee health and safety and did not sufficiently address the issue of casual employment.

The legal issues before the Commission were whether the agreement provided fair and reasonable terms and conditions for the employees and whether it complied with the relevant statutory requirements. In particular, the Commission had to determine whether the agreement provided adequate protections for employee health and safety and whether it complied with the provisions of the Fair Work Act 2009. The Commission also had to consider whether the agreement was made in good faith and whether it provided for a fair and efficient workplace.

The Commission found that the agreement provided fair and reasonable terms and conditions for the employees and that it complied with the relevant statutory requirements. The Commission was satisfied that the agreement provided adequate protections for employee health and safety and that it complied with the provisions of the Fair Work Act 2009. The Commission also found that the agreement was made in good faith and that it provided for a fair and efficient workplace. The Commission approved the agreement, subject to certain conditions, including that the parties undertake to review the agreement within two years of its commencement and to make any necessary amendments to ensure that it continues to provide fair and reasonable terms and conditions for the employees.

Holcim (Australia) Pty Ltd

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