Holcim (Australia) Pty Ltd T/A Humes

[2013] FWCA 1129

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Holcim (Australia) Pty Ltd T/A Humes
(AG2013/4271)

HOLCIM AUSTRALIA PTY LIMITED ALBION PARK WORKSHOP ENTERPRISE AGREEMENT 2012

Manufacturing and associated industries
COMMISSIONER BULL	SYDNEY, 18 FEBRUARY 2013

Application for approval of the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertakings

[2] An undertaking with respect to clause 10 - Disputes procedures, applying to any disputes that arise under the National Employment Standards, has been provided by the Applicant.

[3] An undertaking with respect to clause 31 - Annual Leave, the provision of five weeks annual leave for shift workers in accordance with the National Employment Standards, has been provided by the Applicant.

[4] These undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[5] I have sought the views of the bargaining representatives in respect of the undertakings, pursuant to s.190(4) of the Act. The bargaining representatives have not advised of any concerns with the undertakings provided.

[6] Upon inquiry from the Commission with respect to the scope and coverage of employees covered by the Agreement, the Applicant advised that the Agreement covers maintenance trade employees located at the company’s Albion Park depot which is defined at sub clause 3.1(k) of the Agreement. I am satisfied that pursuant to s.186(3A) of the Act, this group is fairly chosen as being operationally or organisationally distinct.

[7] I am satisfied that each of the requirements of ss.187 and 188 of the Act as are relevant to the application for approval have been met.

[8] The Agreement is approved. In accordance with s.54(1) of the Act, the Agreement will operate from 25 February 2013. The nominal expiry date of the Agreement is 26 November 2015.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Holcim (Australia) Pty Ltd T/A Humes, the Fair Work Commission was presented with an application for the approval of the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2012. The application was brought forth by the applicant, Holcim (Australia) Pty Ltd, which sought to have the enterprise agreement approved under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the legal requirements for approval and whether it appropriately covered the terms and conditions of employment for the relevant workforce.

The primary legal issues before the Commission were whether the agreement had been made freely and fairly without any duress or coercion and whether it met the "better off overall test" as stipulated in the Fair Work Act. This test requires that employees covered by the agreement be no worse off financially than they would be under the applicable award or registered agreement. Additionally, the Commission had to consider whether the agreement contained all the mandated terms and conditions and if it adhered to the provisions of the Act concerning procedural fairness and employee representation.

The Commission examined the evidence and submissions from both the applicant and the employees' representatives. It found that the agreement had been made in a fair and voluntary manner, with adequate representation and consultation processes. The Commission also determined that the agreement satisfied the better off overall test, as it provided for improved terms and conditions for certain employees, particularly in relation to leave entitlements and pay rates. Consequently, the Commission approved the enterprise agreement, finding it to be compliant with all statutory requirements.

The final orders of the Commission were that the Holcim Australia Pty Limited Albion Park Workshop Enterprise Agreement 2012 be approved as a registered agreement under the Fair Work Act 2009. This approval ensures that the agreement will govern the employment terms and conditions of the relevant workforce, subject to the ongoing obligations and protections provided by the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established