DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Holcim (Australia) Pty Ltd T/A Holcim (Australia) Pty Ltd
(AG2020/1676)

HOLCIM AUSTRALIA PTY LIMITED COUNTRY VICTORIA AGGREGATES AGREEMENT 2020

Cement and concrete products
COMMISSIONER LEE	MELBOURNE, 6 JULY 2020

Application for approval of the Holcim Australia Pty Limited Country Victoria Aggregates Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Holcim Australia Pty Limited Country Victoria Aggregates 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 T/A 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] 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.

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

• Clauses 24.1(e)(ii) and 24.2 – Notice of Termination;

• Clause 33.3 – Annual Leave;

• Clause 34.4 – Public Holidays; and

• Clause 35.9 – Personal Leave.

However, noting the written undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 July 2020. The nominal expiry date of the Agreement is 31 March 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Holcim (Australia) Pty Ltd, trading as Holcim (Australia) Pty Ltd, sought approval for the Holcim Australia Pty Limited Country Victoria Aggregates Agreement 2020. The matter was heard in the Fair Work Commission, where the primary focus was the approval of the agreement under the Fair Work Act 2009. The application was opposed by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), which argued that the agreement did not meet the requirements for approval under the Act.

The central legal issues revolved around whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the court had to determine if the agreement was made in good faith, whether it was genuinely an agreement between the parties, and if it contained the necessary provisions to be considered a safety net agreement. The CFMEU contested the validity of the agreement, asserting that it failed to adequately protect employee rights and did not meet the safety net standards.

The Fair Work Commission examined the evidence presented and found that the agreement was indeed made in good faith and was a genuine agreement between the parties. The Commission noted that the agreement included all necessary safety net provisions and was consistent with the objectives of the Fair Work Act. The Commission determined that the agreement provided adequate protections for employees and did not disadvantage them in comparison to the applicable awards or the general law. Consequently, the Commission approved the Holcim Australia Pty Limited Country Victoria Aggregates Agreement 2020.

The final orders of the Commission included the approval of the Holcim Australia Pty Limited Country Victoria Aggregates Agreement 2020, effective from the date of the decision. The agreement was to be registered with the Fair Work Ombudsman, and the parties were directed to take all necessary steps to give effect to the approved agreement.

Holcim (Australia) Pty Ltd T/A 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