Holcim Australia Pty Ltd T/A Holcim Australia Pty Ltd

[2024] FWCA 1034

[2024] FWCA 1034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Holcim Australia Pty Ltd T/A Holcim Australia Pty Ltd

(AG2024/601)

HOLCIM AUSTRALIA PTY LIMITED SOUTHERN NSW AGGREGATES ENTERPRISE AGREEMENT 2024

Quarrying industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 22 MARCH 2024

Application for approval of the Holcim Australia Pty Limited Southern NSW Aggregates Enterprise Agreement 2024

Introduction

1. Holcim Australia Pty Ltd has made an application for approval of an enterprise agreement known as the Holcim Australia Pty Limited Southern NSW Aggregates Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 16 January 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 1 March 2024, the better off overall test requirements in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

1. The Applicant incorrectly completed and lodged the Form F17B. The correct form for agreement applications with a notification date prior to 6 June 2023, and an agreement which is made on or after 6 June 2023, is a Form F17A. I am satisfied that the irregularity in the form should be waived and that it is appropriate to do so, pursuant to s.586(b) of the Act.

National Employment Standards Precedence Term

1. Clause 13.4 of the Agreement provides that the Employer will not be obliged to make severance payments where comparable employment is found for the employee. This clause appears to be inconsistent with s.120 of the Act, which provides that such circumstances give rise to the right to apply to the Commission to reduce the amount of redundancy pay, rather than operating to automatically exclude the employer’s redundancy pay obligations.

1. Clause 15 of the Agreement does not appear to provide that an employee who is deemed to have abandoned their employment is entitled to payment of notice of termination. This clause appears to be inconsistent with sections 117 to 123 of the Act and their provisions with respect to notice and termination.

1. Clause 33 of the Agreement provides for compassionate leave. This clause is silent in relation to the entitlement when the employee, their spouse, or de facto partner has a miscarriage. This clause is not consistent with s.104(1)(c) of the Act, which extends compassionate leave to employees, their spouses or partners in such circumstances.

1. I note that in accordance with the NES precedence term in Clause 6.2 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 186, 187 and 188

1. I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

1. The Construction, Forestry, Mining and Energy Union (CMFEU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the CFMEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 March 2024. The nominal expiry date of the Agreement is 30 July 2026.

DEPUTY PRESIDENT

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