Hymix Australia Pty Ltd

[2021] FWCA 3505

[2021] FWCA 3505

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Hymix Australia Pty Ltd
(AG2021/4972)

HYMIX BENDIGO AUSTRALIA ENTERPRISE AGREEMENT 2017

Cement and concrete products
DEPUTY PRESIDENT MANSINI	MELBOURNE, 18 JUNE 2021

Application for termination of the Hymix Bendigo Australia Enterprise Agreement 2017.

[1] Hymix Australia Pty Ltd (Applicant) has applied to terminate its Hymix Bendigo Australia Enterprise Agreement 2017 1(Agreement), under s.225 of the Fair Work Act 2009 (Cth) (Act).

[2] The Agreement is expressed to cover the Applicant and its employees engaged at company sites in country Victoria and as defined at clauses 17 and 18 therein. 2

[3] The Agreement was approved on 30 August 2018, commenced on 6 September 2018 and has a nominal expiry date of 1 January 2021. 3

[4] The Commission has received evidence of Mr Jeff Burns, Regional HR Manager - Southern Region of Hanson Australia Pty Ltd, in support of the application to terminate the Agreement. 4 The evidence of Mr Burns is summarised in the following paragraphs.

[5] Hanson Australia Pty Ltd is the parent company of both the Applicant entity and Hanson Construction Materials Pty Ltd; the Applicant entity and Hanson Construction Materials Pty Ltd operate (separate) concrete production plants in Bendigo, Victoria and those plants are presently covered by separate enterprise agreements (the Agreement and the Hanson Construction Materials Pty Ltd Country Operations Enterprise Agreement 2019-2023 5 (Hanson Country Agreement), respectively). The Agreement is said to be “an artefact of an historic acquisition of the Applicant entity”. The Applicant is not aware of any other entity which would be covered by the Agreement whether by way of a transfer of business or otherwise.

[6] The Applicant and the 9 employees covered by the Agreement (Affected Employees) have agreed that the Applicant and the Affected Employees will be included in the scope of the enterprise agreement to replace the Hanson Country Agreement after it expires on 1 January 2023. 6 The Affected Employees have each signed contracts to confirm their acceptance of, and will continue to be employed in the intervening period on, terms and conditions that are the essentially the same as the Hanson Country Agreement. A comparison of those conditions was provided to the Commission in support of the contention that the Affected Employees have “signed on” to higher rates of pay, higher allowances and overall more favourable conditions than that in the Agreement.

[7] The Applicant provided evidence of the process and results of two ballots of the Affected Employees: the first ballot resulted in unanimous support of commencement of the formal termination process by making this application; the second ballot resulted in a majority (8 of 9 Affected Employees) confirming support of termination of the Agreement. There was no direct evidence of the reason for the one dissenting vote.

[8] The Commission received evidence that all Affected Employees have been served with: the application and accompanying documents; notifications of Commission proceedings and invitations to provide their views (if any) to the Commission. No Affected Employee(s) elected to contact the Commission to express their views or oppose the termination of the Agreement.

Consideration

[9] On the materials now before the Commission, including the views of those covered by the Agreement where they were expressed, I have decided to determine the application on the papers.

[10] If the application in this matter is granted, the Affected Employees will not be covered by an enterprise agreement within the meaning of s.53 of the Act and an enterprise agreement will no longer apply to their employment. That is the case notwithstanding that their contracts of employment provide for terms and conditions that are aligned to that in the Hanson Country Agreement. The Agreement is expressed to operate to the exclusion of any award, including and not limited to the Premixed Concrete Award 2010 and the Road Transport and Distribution Award 2010. 7 It is uncontroversial that these Awards (as amended) are expressed to cover the Affected Employees in relation to their particular employment with the Applicant and ultimately would underpin the contracts of employment in the absence of application of an enterprise agreement.8

[11] I have taken into account all the materials before the Commission, including the differences in conditions between the Awards and the Agreement and the contractual terms and conditions and the Agreement (including where those differences amount to more and less favourable conditions), in reaching the conclusion that the termination of the Agreement is not contrary to the public interest. I am satisfied in the present case that it is not contrary to the public interest to terminate the Agreement.

[12] I have had regard to the evidence of the employer’s views which unsurprisingly are in support of the application. I have also had regard to the evidence of the two ballots conducted by the employer which indicates that the Affected Employees overwhelming voted in support of the application but also that one (of 9) Affected Employees might not (or might no longer) support the application. However, in the absence of any direct views of the employees and without more, there is nothing before me which raises considerations that might militate against termination of the Agreement.

[13] Having regard to the materials before the Commission and the matters I am required to take into account pursuant to s.226 of the Act:

a) I am satisfied that termination of the Agreement is not contrary to the public interest; and
b) I consider that it is appropriate to terminate the Agreement taking into account all the circumstances at s.226(b)(i) and (ii).

[14] For the above reasons, pursuant to ss.226 and 227 of the Act, I terminate the Agreement. The termination will operate from 18 June 2021.

DEPUTY PRESIDENT

 1   AE900089.

 2   Clause 4 of the Agreement.

 3   Hymix Australia Pty Ltd T/A Hymix [2018] FWCA 5028 at [3].

 4   Form F24C Declaration filed on 4 May 2021 and Witness Statement of Jeffrey Burns dated 18 May 2021.

 5   AE504082.

 6   Hanson Construction Materials Pty Ltd [2019] FWCA 4358 at [4].

 7   Clause 4.2 of the Agreement.

 8   Sections 47, 48 and 57 of the Act.

Printed by authority of the Commonwealth Government Printer

<AE900089  PR730821>