James Hardie Australia Pty Ltd T/A James Hardie Australia Pty Ltd

[2023] FWCA 1052

[2023] FWCA 1052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

James Hardie Australia Pty Ltd T/A James Hardie Australia Pty Ltd

(AG2023/633)

JAMES HARDIE AUSTRALIA PTY LIMITED ROSEHILL PRODUCTION & DISTRIBUTION ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 12 APRIL 2023

Application for approval of the James Hardie Australia Pty Limited Rosehill Production & Distribution Enterprise Agreement 2023

1. James Hardie Australia Pty Ltd T/A James Hardie Australia Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the James Hardie Australia Pty Limited Rosehill Production & Distribution Enterprise Agreement 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.

1. The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A.  Pursuant to s.190(4) of the Act, I sought the views of the United Workers’ Union (the UWU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. On 12 April 2023, the UWU advised that it does not object to the undertakings provided by the Employer.

1. 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.  Pursuant to s.190 of the Act, I accept the undertakings.  In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

1. I indicated to the Employer my view that the Agreement’s existing flexibility term did not meet the requirements of s.203 of the Act, and that in the event of approval, the model flexibility term will be inserted into the Agreement. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by Schedule 2.2 of the Fair Work Regulations 2009 (the Regulations) is attached to the Agreement and is taken to be a term of it.

1. I also indicated to the Employer my view that the Agreement’s existing consultation term did not meet the requirements of s.205 of the Act, and that in the event of approval, the model consultation term will be inserted into the Agreement. Pursuant to s.205(2) of the Act, the model consultation term prescribed by Schedule 2.3 of the Regulations is attached to the Agreement and taken to be term of it.

1. I have taken into consideration the material filed in the Commission. 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.  The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The UWU 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) of the Act I note that the Agreement covers the UWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 April 2023.  The nominal expiry date of the Agreement is 8 March 2026.

COMMISSIONER

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<AE519714  PR761025>

Annexure A – Undertakings