Holcim (Australia) Pty Ltd

[2021] FWCA 2903

[2021] FWCA 2903

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2021/5061)

HOLCIM (AUSTRALIA) PTY LTD BRISBANE AND GOLD COAST AGGREGATES ENTERPRISE AGREEMENT 2021

Cement and concrete products
DEPUTY PRESIDENT ASBURY	BRISBANE, 20 MAY 2021

Application for approval of the Holcim (Australia) Pty Ltd Brisbane and Gold Coast Aggregates Enterprise Agreement 2021.

[1] Holcim (Australia) Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Holcim (Australia) Pty Ltd Brisbane and Gold Coast Aggregates Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. 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.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

● Clause 15.2 – notice of termination by employee; and

● Clause 16.1 – redundancy pay.

[5] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] In relation to clause 16.1 of the Agreement, which states that where the Company is successful in finding an Employee Comparable Employment the Company will not be obliged to make redundancy payments including where the employee is transferred and does not accept the comparable employment, it is noted that the Applicant could only seek to vary an amount of redundancy pay to which the employee would be entitled under s. 119 of the Act, by making an application to the Commission pursuant to s. 120.

[7] The Applicant also advised the Commission of an administrative error in Appendix A of the Agreement, in relation to the weekly wages rate for Level 4 employees which are set out as being $1,170.04. In the Form F17 Employer’s statutory declaration made by Mr Corey Webb, Human Resource Business partner – QLD, it is stated that the correct weekly rate is $1,172.92, and that the Applicant’s intention was to pay this higher rate. The Applicant has been informed that to correct this error it should make an application to vary the Agreement pursuant to s. 217 of the Act.

[8] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[9] 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 the organisation. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[10] The Agreement is approved in accordance with s.54 of the Act and will operate from 27 May 2021. The nominal expiry date of the Agreement is 10 February 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511543  PR730023>

Annexure A