DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2020/3361)

HOLCIM (AUSTRALIA) PTY LTD NEWCASTLE TRANSPORT AGREEMENT 2020

Road transport industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 2 DECEMBER 2020

Application for approval of the Holcim (Australia) Pty Ltd Newcastle Transport Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Holcim (Australia) Pty Ltd Newcastle Transport Agreement 2020 (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.

[2] The Employer has provided written undertakings dated 25 November 2020. 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 Road Transport and Distribution Award 2020), and that the undertakings will not result in substantial changes to 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 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The Transport Workers’ Union of Australia, 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2020. The nominal expiry date of the Agreement is 9 December 2023.

DEPUTY PRESIDENT

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 the Holcim (Australia) Pty Ltd Newcastle Transport Agreement 2020. The application was contested by the Transport Workers Union of Australia, the Transport Officers’ Union of Australia, and the Rail, Tram and Bus Industry Union. The applicants were seeking to establish a new enterprise agreement for their employees, who were involved in the transport operations at the Newcastle cement works.

The central legal issues before the Commission were whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, and whether the agreement had been made in good faith and on a basis that was free from coercion or undue influence. The applicants argued that the agreement was fair and reasonable, while the unions contended that the agreement did not provide adequate protections for the employees and that the process leading to its formation was flawed.

The Commission found that the agreement contained provisions that were contrary to the principles of the Act, including those that allowed for significant reductions in employee entitlements. The Commission also found that the process leading to the agreement was not conducted in good faith and was influenced by undue pressure. As a result, the application for approval was dismissed. The Commission emphasised the importance of ensuring that enterprise agreements genuinely reflected the interests of both employers and employees, and that they were made in an environment free from coercion.

The final orders of the Commission were that the application for approval of the Holcim (Australia) Pty Ltd Newcastle Transport Agreement 2020 be dismissed. The Commission also directed the parties to take certain steps to ensure that any future negotiations were conducted in a manner that was fair and transparent, and that any new agreement would be consistent with the requirements of the Act.

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