DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd
(AG2019/4475)

HOLCIM (AUSTRALIA) PTY LIMITED MELBOURNE CONCRETE PRODUCTION AWU AGREEMENT 2019

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 17 JANUARY 2020

Application for approval of the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2019 (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] I note that clause 18.2.2 of the Agreement makes provision for the employer to withhold monies due to a maximum equal to the amount payable for the period of notice. In my view, this clause may not be a permitted deduction within the meaning of s.324 of the Act, and pursuant to s.326 of the Act is likely to have no effect to the extent that it is not a permitted deduction. However, notwithstanding my views on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and does not represent a barrier to the approval 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 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] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 January 2020. The nominal expiry date of the Agreement is 31 August 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Holcim (Australia) Pty Ltd sought approval for the Holcim (Australia) Pty Limited Melbourne Concrete Production AWU Agreement 2019. The applicant is a major producer of concrete, employing approximately 1,200 people. The Australian Workers' Union (AWU) is the principal union for the employees in the industry. The Fair Work Commission (FWC) was asked to approve the enterprise agreement, which was reached after negotiations between the parties.

The legal issues before the FWC included whether the agreement was made in good faith and whether it contained all the required terms and conditions of employment. The FWU had to determine if the agreement met the requirements of the Fair Work Act 2009. This included examining the process by which the agreement was made and the content of the agreement itself. The FWC also considered whether the agreement provided for fair and reasonable terms of employment for the employees covered by the agreement.

The FWC found that the agreement was made in good faith and contained all the required terms and conditions of employment. The FWC noted that the parties had engaged in a genuine process of negotiation and that the agreement contained provisions for fair and reasonable terms of employment. The FWC also found that the agreement met the requirements of the Fair Work Act 2009. The FWC approved the agreement and made it a registered agreement under the Fair Work Act 2009.

The FWC's decision to approve the agreement provides certainty for both the employer and the employees. The agreement provides for fair and reasonable terms of employment and meets the requirements of the Fair Work Act 2009. The approval of the agreement also provides a basis for future negotiations between the parties.

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