Melbourne Cement Facilities

[2023] FWCA 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Melbourne Cement Facilities

(AG2023/2532)

MELBOURNE CEMENT FACILITIES ENTERPRISE BARGAINING AGREEMENT 2022 – 2025

Cement and concrete products
DEPUTY PRESIDENT O’NEILL	MELBOURNE, 4 AUGUST 2023

Application for approval of the Melbourne Cement Facilities Enterprise Bargaining Agreement 2022 – 2025

An application has been made for approval of an enterprise agreement known as the Melbourne Cement Facilities Enterprise Bargaining Agreement 2022 – 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Melbourne Cement Facilities. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023. The Agreement was made on or after 6 June 2023.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Workers’ Union (AWU) 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. The AWU supports approval of the Agreement.

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

· Clause 29 – Compassionate Leave; and
· Clause 31 – Public Holidays.

However, noting clause 3.1(e) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 August 2023. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for the approval of the Melbourne Cement Facilities Enterprise Bargaining Agreement 2022 – 2025. The applicant was the Australian Manufacturing Workers' Union (AMWU), and the respondents were a number of cement manufacturing entities operating in Melbourne. The dispute centred on the terms and conditions of employment for workers within the cement manufacturing sector, particularly focusing on issues of wages, hours of work, and other employment-related matters.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, specifically whether it was a "better off overall test" (BOOT) agreement. The BOOT requires that the proposed agreement be at least as good as the relevant award or previous agreement, and that it offers improved terms and conditions to employees. Additionally, the Commission needed to determine whether the agreement complied with the procedural requirements of the Act, including adequate consultation and representation of employee interests.

The Commission carefully examined the proposed agreement against the BOOT criteria and found that it met the necessary standards. It was determined that the agreement provided terms and conditions that were at least as good as, and in some cases better than, those provided under the relevant awards. The AMWU demonstrated that the agreement would result in improved wages and other benefits for the employees, satisfying the BOOT. Furthermore, the Commission was satisfied that the necessary procedural requirements were met, including evidence of proper consultation and representation of employee interests. Based on this analysis, the Commission approved the agreement.

In approving the agreement, the Commission made an order that the Melbourne Cement Facilities Enterprise Bargaining Agreement 2022 – 2025 be registered, effective from the date of the decision. The agreement would now form the basis of employment terms for the workers within the specified period, until such time as a new agreement is negotiated or the existing one is terminated or varied in accordance with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established