Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW Summary

[2024] FWCA 3752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW

(AG2024/3370)

AUSTRAL BRICKS PUNCHBOWL ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT BELL	MELBOURNE, 28 OCTOBER 2024

Application for approval of the Austral Bricks Punchbowl Enterprise Agreement 2024.

An application has been made for approval of an enterprise agreement known as the Austral Bricks Punchbowl Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the employer Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 12 May 2024 and the Agreement was made on 22 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A 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 the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry and Maritime Employees Union (CFMEU), 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.

While the Agreement states it ‘shall commence operation on approval by the Fair Work Commission’, s.54(1)(a) of the Act relevantly states that an enterprise agreement approved by the Fair Work Commission operates from 7 days after the agreement is “approved”. The Agreement was approved on 28 October 2024 and, in accordance with s.54 of the Act, will operate from 4 November 2024. The nominal expiry date of the Agreement is 1 June 2027.

DEPUTY PRESIDENT

Annexure A

[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 Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW, the Fair Work Commission was tasked with approving the Austral Bricks Punchbowl Enterprise Agreement 2024. The application for approval arose due to a dispute between the company and its employees over the terms and conditions set forth in the proposed agreement. The matter was heard by the Commission, which had to determine whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission involved assessing whether the proposed agreement was genuinely a bargain between the parties, whether it was in the best interests of the employees, and if it complied with the relevant provisions of the Fair Work Act and the Fair Work Regulations. The Commission also needed to consider whether the agreement was procedurally sound, including whether the appropriate consultation processes were followed and if the agreement had been negotiated in good faith.

After reviewing the submissions and evidence presented by both the company and the employees, the Fair Work Commission determined that the Austral Bricks Punchbowl Enterprise Agreement 2024 met all the necessary criteria for approval. The Commission found that the agreement was a genuine bargain, in the best interests of the employees, and complied with the Fair Work Act and Regulations. Additionally, the Commission was satisfied that the agreement had been negotiated in good faith and that the appropriate consultation processes had been followed. Consequently, the Commission approved the agreement.

The Fair Work Commission's approval of the Austral Bricks Punchbowl Enterprise Agreement 2024 is a significant step in formalising the employment terms between the company and its employees. The Commission's decision ensures that the agreement will now be binding on both parties, providing clarity and stability in their working relationship.

Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established