Holcim (Australia) Pty Ltd

[2021] FWCA 6856

[2021] FWCA 6856

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2021/8086)

HOLCIM (AUSTRALIA) PTY LIMITED - LYNWOOD QUARRY ENTERPRISE AGREEMENT 2021

Quarrying industry
COMMISSIONER MATHESON	SYDNEY, 25 NOVEMBER 2021

Application for approval of the Holcim (Australia) Pty Limited – Lynwood Quarry Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The agreement subject of the application is a single enterprise agreement.

[2] There are minor differences in the name of the enterprise agreement in the documents filed with the Commission. The name of the agreement on the Form F16 – Application for approval of an enterprise agreement (other than a greenfields agreement) (Form F16) is stated as ‘Holcim Australia Pty Limited – Lynwood Quarry Enterprise Agreement 2021’. The name of the agreement on the Form 17 – Employer’s declaration in support of an enterprise agreement (other than a greenfields agreement) (Form F17) is ‘Holcim Australia Pty Limited Lynwood Quarry Enterprise Agreement 2021’. The name given in clause 1.1 of the agreement itself is ‘Holcim Lynwood Quarry Enterprise Agreement 2021’. The name given on page one of the agreement is ‘Holcim (Australia) Pty Limited – Lynwood Quarry Enterprise Agreement 2021’. The name given in the footer of the agreement is ‘Holcim (Australia) Pty Limited Lynwood Quarry Enterprise Agreement 2021’.

[3] The Applicant sought corrections so that the name of the agreement in the Forms F16 and F17, page one of the agreement, clause 1.1 of the agreement and the footer on each page of the agreement is stated as ‘Holcim (Australia) Pty Limited – Lynwood Quarry Enterprise Agreement 2021’ (Agreement). I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act. I make the corrections.

[4] The name of the applicant in the Form F16 is Holcim Australia Pty Ltd. The name of the employer provided in the Form F17 is Holcim (Australia) Pty Limited. Clause 2.1(a) of the Agreement itself refers to the company covered by the Agreement as ‘Holcim’ and this is not defined in the Agreement. The applicant subsequently sought to correct to the application to indicate that the correct name of the applicant and employer is Holcim (Australia) Pty Limited (Applicant). The Applicant also sought a correction to clause 2.1(a) of the Agreement to reflect the correct legal name of the employer such that clause 2.1(a) of the agreement reads as:

“(a) Holcim (Australia) Pty Limited (“Holcim” or “the Company” or “Employer”);”

[5] I am satisfied that the corrections should be made and that it is appropriate to do so pursuant to s.586 of the Act. I make the corrections.

[6] Clauses 5.1 and 5.2 of the Agreement states:

“5.1 The National Employment Standards (NES) and this Agreement contain the minimum conditions of employment for employees covered by this Agreement.

5.2 Where this Agreement refers to a condition of employment provided for in the NES, the NES definition applies” (emphasis added).

[7] The Applicant sought a correction of clause 5.2 of the Agreement to read:

“Where the Agreement refers to a condition of employment provided for in the NES, the NES condition applies.”

[8] I am satisfied that the reference to ‘definition’ rather than ‘condition’ in clause 5.2 of the Agreement is an error and that that it is appropriate to correct this error pursuant to s.586 of the Act. I make the correction.

[9] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met. Further information was provided in relation to those concerns.

[10] Clause 6 of the Agreement filed with the Commission includes a flexibility term that is inconsistent with s.203(2) of the Act. The Applicant has provided a written undertaking to address this concern which would have the effect that the clause 6 of the Agreement is replaced with the model flexibility term in accordance with s.202(4) of the Act (Model Flexibility Term).

[11] Clause 32.2 of the Agreement may in certain respects be inconsistent with s.120 of the Act. The Applicant has provided a written undertaking to address this concern.

[12] A copy of the undertakings provided by the Applicant are attached at Annexure A of this decision (Undertakings).

[13] The views of the bargaining representatives for the Agreement were sought in relation to the Undertakings. The Australian Workers Union advised it did not object to the Undertakings. The other bargaining representative did not provide any views or submissions in opposition to the Undertakings.

[14] I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[15] Pursuant to s.190(3) of the Act, I accept the Undertakings. The Model Flexibility Term is attached to and is taken to be a term of the Agreement.

[16] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[17] The Australian Workers’ Union, being bargaining representative for the Agreement, have given 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 that the Agreement covers the organisation.

[18] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2021. The nominal expiry date of the Agreement is 1 May 2023.

COMMISSIONER

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Annexure A