P.M.R Quarries Pty Ltd and Ransberg Pty Ltd T/A W.A. Limestone (P.M.R Quarries Pty Ltd), W.A Premix (Ransberg Pty Ltd), W.A Bluemetal (Ransberg Pty Ltd)

[2024] FWCA 52

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

P.M.R Quarries Pty Ltd and Ransberg Pty Ltd T/A W.A. Limestone (P.M.R Quarries Pty Ltd), W.A Premix (Ransberg Pty Ltd), W.A Bluemetal (Ransberg Pty Ltd)

(AG2023/4598)

WA LIMESTONE, WA BLUEMETAL & WA PREMIX WESTERN AUSTRALIAN ENTERPRISE AGREEMENT 2023

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 8 JANUARY 2024

Application for approval of the WA Limestone, WA Bluemetal & WA Premix Western Australian Enterprise Agreement 2023

P.M.R Quarries Pty Ltd and Ransberg Pty Ltd have made an application for the approval of an enterprise agreement known as the WA Limestone, WA Bluemetal & WA Premix Western Australian Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). 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. The notification time for the Agreement under s.173(2) was 25 August 2023 and the Agreement was made on 13 November 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

I note that clause 16(b) of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment, however, the provision is not subject to an application under s 120 of the Act. However, I am satisfied that under clause 7 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement was approved on 8 January 2024 and, in accordance with s 54, will operate from 15 January 2024. The nominal expiry date of the Agreement is 8 January 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The respondents, operating under the names of WA Limestone, WA Bluemetal, and WA Premix, sought the approval of an enterprise agreement. The application was brought before the Fair Work Commission, with the Fair Work Ombudsman providing observations in support of the application. The application aimed to approve the Western Australian Enterprise Agreement 2023, which was the subject of negotiations between the respondents and the Construction, Forestry, Maritime, Mining and Energy Union. The agreement was intended to apply to the respondents' employees who were members of the union.

The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act 2009. Specifically, the Commission had to determine whether the agreement contained the necessary minimum terms and conditions, and whether it was free from prohibited content. The Fair Work Ombudsman argued that the agreement met these criteria, while the respondents emphasised the outcomes of the negotiation process.

In reaching its decision, the Commission considered the negotiation process and the content of the agreement. The Commission found that the agreement contained all the necessary minimum terms and conditions and was free from prohibited content. The Commission was satisfied that the agreement was the product of genuine bargaining between the parties and that it met the requirements for approval under the Fair Work Act. The Fair Work Ombudsman's observations did not change the Commission's view.

Accordingly, the Fair Work Commission approved the Western Australian Enterprise Agreement 2023. The agreement is now a registered agreement, and the parties are bound by its terms. The decision is final and binding, and no further application for approval is necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established