Holcim (Australia) Pty Ltd

[2023] FWCA 2374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim (Australia) Pty Ltd

(AG2023/2424)

HUMES LAVERTON VICTORIA ENTERPRISE AGREEMENT 2023

Cement and concrete products
DEPUTY PRESIDENT O’KEEFFE	PERTH, 31 JULY 2023

Application for approval of the Humes Laverton Victoria Enterprise Agreement 2023.

An application has been made for approval of an enterprise agreement known as the Humes Laverton Victoria Enterprise Agreement 2023 (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 Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 20 December 2022 and the Agreement was made on 6 July 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 24 February 2026.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Holcim (Australia) Pty Ltd applied to the Fair Work Commission for approval of the Humes Laverton Victoria Enterprise Agreement 2023. The application was made by the employer, Holcim, and opposed by the Australian Manufacturing Workers' Union, who represented some of the employees. The dispute centred on whether the agreement met the statutory requirements under the Fair Work Act 2009 for enterprise agreements. The central legal issues were whether the agreement had been fairly negotiated and if it contained the necessary minimum terms and conditions as stipulated by the Act.

The Commission examined the evidence of the negotiation process and the content of the agreement. It considered whether the agreement had been made in good faith, whether there was genuine bargaining, and whether the agreement provided for the minimum entitlements as set out in the Act. The Commission also assessed submissions from both parties regarding the fairness of the agreement and its compliance with statutory requirements. After reviewing the submissions and evidence, the Commission determined that the agreement had been fairly negotiated and contained all the required minimum terms and conditions.

The Fair Work Commission approved the Humes Laverton Victoria Enterprise Agreement 2023, finding it to be compliant with the statutory requirements. The Commission held that the employer had demonstrated that the agreement was made in good faith and through genuine bargaining. The agreement was found to provide for all the minimum entitlements, thus satisfying the legislative criteria for approval. The decision was made in the interest of maintaining industrial harmony and ensuring that the employees' rights and conditions were adequately protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established