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

[2022] FWCA 3594

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/4162)

Austral Bricks Punchbowl Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 14 OCTOBER 2022

Application for approval of the Austral Bricks Punchbowl Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement to be known as the Austral Bricks Punchbowl Enterprise Agreement 2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Austral Bricks (NSW) Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 13 October 2022. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, 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 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 21 October 2022. The nominal expiry date of the Agreement is 1 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent decision of Austral Bricks (NSW) Pty Ltd T/A Austral Bricks NSW, the Fair Work Commission was tasked with approving an enterprise agreement proposed by the employer and the union representing the employees. The agreement, titled the Austral Bricks Punchbowl Enterprise Agreement 2022, sought to establish terms and conditions of employment for the workers employed by the company. The union had lodged an application for the approval of the agreement, and the Commission was required to determine whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement complied with the requirements set out in the Fair Work Act, specifically whether it contained the necessary minimum terms, was free from prohibited content, and was made in good faith. The Commission had to consider whether the agreement provided for a modern award, whether it contained only permissible content, and whether the parties had genuinely negotiated the agreement. Additionally, the Commission needed to assess whether the agreement was consistent with the Fair Work (Registered Organisations) Act 2009, which imposes additional requirements on the conduct of the parties during the negotiation process.

In reaching its decision, the Commission examined the evidence provided by the parties and the content of the proposed agreement. The Commission found that the agreement contained all the required minimum terms and was free from prohibited content. Furthermore, the Commission determined that the agreement had been made in good faith and that the parties had genuinely negotiated the terms of the agreement. The Commission was satisfied that the agreement was consistent with the requirements of the Fair Work (Registered Organisations) Act 2009. Based on these findings, the Commission approved the Austral Bricks Punchbowl Enterprise Agreement 2022.

The Commission's decision to approve the agreement was based on its satisfaction that the agreement met all the statutory requirements for approval under the Fair Work Act. The Commission found that the agreement provided for a modern award, contained only permissible content, and was made in good faith. The Commission also found that the agreement was consistent with the requirements of the Fair Work (Registered Organisations) Act 2009. As a result, the Commission approved the agreement, and it will now form the terms and conditions of employment for the employees covered by the agreement.

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