Holcim (Australia) Pty Ltd Summary

[2023] FWCA 79

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Ltd

(AG2022/5343)

HOLCIM AUSTRALIA PTY LIMITED DUBBO AGGREGATES ENTERPRISE AGREEMENT 2022

Quarrying industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 10 JANUARY 2023

Application for approval of the Holcim Australia Pty Limited Dubbo Aggregates Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Holcim Australia Pty Limited Dubbo Aggregates 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 provision is likely to be inconsistent with the National Employment Standards (NES):

· Clause 30.1 – Requirement to work Public Holidays.

However, noting clause 6.2 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 Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 9 January 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Holcim (Australia) Pty Ltd, as the employer, applied to the Fair Work Commission for approval of the Holcim Australia Pty Limited Dubbo Aggregates Enterprise Agreement 2022. This agreement was made between the employer and the Transport Workers Union of Australia, as the representative for the employees. The application arose under the Fair Work Act 2009, seeking confirmation that the agreement meets the procedural and substantive requirements for registration.

The central legal issues addressed by the Commission were whether the agreement was made in accordance with the procedural prerequisites of the Act and whether it satisfied the substantive criteria for being a lawful and fair agreement. Procedurally, the Commission had to consider whether the agreement was genuinely negotiated and whether the necessary consultation and disclosure processes were followed. Substantively, the Commission needed to ensure that the agreement did not adversely affect employees’ rights and did not include any terms that would be against public policy.

The Fair Work Commission found that the agreement was genuinely negotiated and that all procedural requirements had been met. The Commission also determined that the agreement did not adversely affect the rights of employees and did not contain any terms that would be against public policy. The agreement was therefore approved for registration. The Commission highlighted the importance of the procedural fairness and the substantive fairness of the agreement, noting that both aspects were critical to ensuring that the enterprise agreement was both lawful and fair.

The Fair Work Commission approved the Holcim Australia Pty Limited Dubbo Aggregates Enterprise Agreement 2022 for registration, effective from the date of the decision. This approval ensures that the agreement is legally binding on the employer and the employees covered by the agreement. The decision confirms the validity of the agreement and provides certainty for both parties in their future industrial relations dealings.

Holcim (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established