Holcim (Australia) Pty Ltd

[2022] FWCA 4548

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Ltd

(AG2022/5089)

Humes Tamworth Enterprise Agreement 2023

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 21 DECEMBER 2022

Application for approval of the Humes Tamworth Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Humes Tamworth Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Holcim (Australia) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 13 December 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Concrete Products Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model consultation clause

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.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

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 28 December 2022. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case of Holcim (Australia) Pty Ltd involved the company applying to the Fair Work Commission for approval of the Humes Tamworth Enterprise Agreement 2023. This enterprise agreement was aimed at setting out the terms and conditions of employment for workers at Holcim's Tamworth site. The nature of the dispute centred around whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, specifically whether it facilitated, promoted, or improved the terms and conditions of employment.

The central legal issues the court had to decide were whether the enterprise agreement adequately met the "better off overall test" (BOOT) and if it contained all the mandated terms as required by the Fair Work Act. The "better off overall test" ensures that employees are not worse off financially under the new agreement compared to their previous conditions. Additionally, the court had to assess if the agreement included all mandatory terms and was free from any invalid provisions that could undermine its enforceability.

The Fair Work Commission, in its decision, evaluated the proposed agreement against these criteria. It considered various aspects, including the financial implications for employees, the scope and clarity of the terms, and whether any unfair dismissal provisions were included. The Commission determined that the agreement satisfied the BOOT, as employees would be better off overall, and it included all mandated terms. Consequently, the Commission approved the Humes Tamworth Enterprise Agreement 2023, finding it compliant with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established