Neilsens Concrete Pty Ltd

[2024] FWCA 1858

[2024] FWCA 1858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Neilsens Concrete Pty Ltd

(AG2024/1523)

NEILSENS CONCRETE PTY LTD BATCHERS AND TESTERS ENTERPRISE AGREEMENT 2023

Cement and concrete products
COMMISSIONER HUNT	BRISBANE, 21 MAY 2024

Application for approval of the Neilsens Concrete Pty Ltd Batchers and Testers Enterprise Agreement 2023

1. Neilsens Concrete Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Neilsens Concrete Pty Ltd Batchers and Testers 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 Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 2 November 2023 and the Agreement was made on 29 April 2024. Accordingly, the genuine agreement requirements and the better off overall test requirements are those applying on and from 6 June 2023.

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 Australian Workers’ Union (AWU) and employee bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were received.

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 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 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) of the Act I note that the Agreement covers the AWU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 May 2024. The nominal expiry date of the Agreement is 21 May 2028.

COMMISSIONER

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Annexure A – Undertakings