DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim Australia Pty Ltd
(AG2020/3516)

HOLCIM (AUSTRALIA) PTY LTD SOUTH WEST / GIPPSLAND CONCRETE VICTORIA AGREEMENT 2020

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 10 DECEMBER 2020

Application for approval of the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria Agreement 2020 (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 Agreement is a single enterprise agreement.

[2] 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.

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

[4] 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.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Australian Workers’ Union of Australia 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) I note that the Agreement covers the organisation.

[7] I observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

• 15.2 - Notice of termination by Employee.

However, noting clause 7.2 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.

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 December 2020. The nominal expiry date of the Agreement is 16 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Holcim Australia Pty Ltd applied to the Fair Work Commission for approval of an enterprise agreement titled the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria Agreement 2020. The agreement, which covered employees in the concrete manufacturing industry, was submitted for consideration under the Fair Work Act 2009. The dispute centred on whether the agreement met the statutory requirements for approval, including its compliance with the good faith bargaining principles and the provisions concerning minimum entitlements.

The legal issues the court had to address included whether the agreement was genuinely negotiated and if it contained provisions that were inconsistent with the minimum standards set by the Fair Work Act. Additionally, the court examined if the agreement was appropriately certified by the Australian Council of Trade Unions or another authorised bargaining representative. The primary focus was on whether the agreement could be approved as a single, simplified, and direct agreement, or if it should be subject to a more stringent process involving testing for compliance with the provisions of the Act.

The Fair Work Commission found that the agreement had been genuinely negotiated in good faith and contained provisions that did not contravene the minimum standards of the Fair Work Act. The court considered the evidence provided by the parties and the certification process that was undertaken. The commission concluded that the agreement was appropriately certified and met the requirements for approval. The court also noted that the agreement was straightforward and did not necessitate a complex testing process. As a result, the application for approval was successful.

The Fair Work Commission approved the Holcim (Australia) Pty Ltd South West / Gippsland Concrete Victoria Agreement 2020, recognising it as a lawful and compliant enterprise agreement. The approval was granted on the basis that the agreement was genuinely negotiated, certified, and contained provisions that were consistent with the minimum standards of the Fair Work Act. The decision was made in favour of Holcim Australia Pty Ltd, allowing the agreement to proceed as an approved enterprise agreement.

Holcim Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established