Hymix Australia Pty Ltd

[2021] FWCA 242

[2021] FWCA 242

FAIR WORK COMMISSION

DECISION

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

Hymix Australia Pty Ltd
(AG2020/3881)

HYMIX AUSTRALIA PTY LTD BATCHING PLANT AGREEMENT 2020 – 2023

Cement and concrete products
DEPUTY PRESIDENT ASBURY	BRISBANE, 19 JANUARY 2021

Application for approval of the Hymix Australia Pty Ltd Batching Plant Agreement 2020 – 2023.

[1] Hymix Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Hymix Australia Pty Ltd Batching Plant Agreement 2020 – 2023 (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.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement has been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following provisions of the Agreement may be inconsistent with the National Employment Standards (NES):

•  Probationary and casual employment;

•  Unpaid Carer’s Leave Leave.

[5] I note that the Applicant has given an undertaking that the Agreement will be read and interpreted in conjunction with the NES and that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] The consultation term in the Agreement does not contain terms as required by s. 202 and s. 205 of the Act. The model consultation set out in the Fair Work Regulations 2009 (Regulations) is therefore taken to be a term of the Agreement.

[7] I accept, based on responses provided by the Applicant to issues raised by me, that my initial concern as to whether the group of employees covered by the Agreement is fairly chosen has been addressed by the employer’s explanation to the effect that batching plant employees are organisationally and/or operationally distinct and that drivers are covered by a separate enterprise agreement. I also accept that the notice of employee representational rights and the terms of the Agreement make clear that it operates only in Queensland and that the reference in the original Form F17 to the Agreement applying in New South Wales was an error. Further, I accept that employees were provided with seven days’ notice of the date and time of the ballot for approval of the Agreement and the method of voting.

[8] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the employer, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met.

[9] The Agreement is approved in accordance with s.54 of the Act and will operate from 26 January 2021. The nominal expiry date of the Agreement is 23 November 2023.

DEPUTY PRESIDENT

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Annexure A.