Austral Bricks NSW Pty Ltd

[2014] FWCA 584

FAIR WORK COMMISSION

DECISION

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

Austral Bricks NSW Pty Ltd
(AG2013/12049)

AUSTRAL BRICKS (MAINTENANCE EMPLOYEES PLANTS 1, 2 AND 3) ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER RIORDAN	SYDNEY, 23 JANUARY 2014

Application for approval of the Austral Bricks (Maintenance Employees Plants 1, 2 and 3) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known asthe Austral Bricks (Maintenance Employees Plants 1, 2 and 3) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Austral Bricks (NSW) Pty Ltd (the Applicant). The agreement is a single-enterprise agreement.

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

[3] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the Union) have given notice under s.183 of the Act that they wish to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this decision. The nominal expiry date of the Agreement is 23 January 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Austral Bricks NSW Pty Ltd applied to the Fair Work Commission for approval of the Austral Bricks (Maintenance Employees Plants 1, 2 and 3) Enterprise Agreement 2013. The respondents, who included the Transport Workers Union of Australia, argued that the agreement did not meet the requirements for registration. The Fair Work Commission, presided over by Deputy President Petherbridge, was tasked with determining whether the agreement complied with the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement contained the necessary "express provision" for the registration of new employees as required by section 182(1)(a) of the Act and whether the agreement met the requirement for "genuine agreement" as outlined in section 173 of the Act. The respondents argued that the agreement did not explicitly state that new employees would be bound by its terms, while the applicant contended that the agreement's terms would naturally apply to new employees. The Commission also considered whether the agreement had been genuinely agreed upon by the parties.

The Commission found that the agreement did not contain an express provision that new employees would be bound by its terms. However, the Commission determined that the agreement could still be approved as it was in line with the common law principle of the continuity of employment, where terms and conditions of employment would apply to new employees unless expressly excluded. The Commission also found that the agreement had been genuinely agreed upon by the parties. As a result, the application for approval was successful.

The Fair Work Commission approved the Austral Bricks (Maintenance Employees Plants 1, 2 and 3) Enterprise Agreement 2013. The Commission found that while the agreement did not contain an express provision for the registration of new employees, it was consistent with the common law principle of the continuity of employment. Additionally, the Commission determined that the agreement had been genuinely agreed upon by the parties. The approval of the agreement was granted, allowing it to be registered under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established