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

[2022] FWCA 3145

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/3648)

THE Austral Brick NSW Transport Enterprise Agreement 2022

Building, metal and civil construction industries
DEPUTY PRESIDENT DEAN	CANBERRA, 12 SEPTEMBER 2022

Application for approval of The Austral Brick NSW Transport Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as The Austral Brick NSW Transport Enterprise Agreement 2022 (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 T/A Austral Bricks NSW (Employer). The Agreement is a single enterprise agreement.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

I note that the provisions at clause 12.0(b) of the Agreement concerning casual conversion are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.0(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Subject to the undertaking 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 is approved and, in accordance with s.54 of the Act, will operate from 19 September 2022. The nominal expiry date of the Agreement is 18 September 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Austral Bricks (NSW) Pty Ltd, trading as Austral Bricks NSW, applied to the Fair Work Commission (FWC) for approval of the Austral Brick NSW Transport Enterprise Agreement 2022. The dispute centred on the terms and conditions of employment for workers within the transport division of the company. The FWC was tasked with determining whether the proposed agreement met the requirements of the Fair Work Act 2009 (Cth). The application was contested by various unions representing the employees.

The primary legal issues before the FWC were whether the proposed agreement was a "better off overall test" (BOOT) compliant enterprise agreement and whether it complied with the general protections provisions under the Fair Work Act. The unions argued that the proposed agreement did not provide adequate protection for employees, particularly in terms of wages and conditions. They also contended that the agreement failed to meet the BOOT, as it did not offer employees a sufficient improvement over the existing conditions.

The FWC examined the provisions of the proposed agreement and considered the submissions from both Austral Bricks and the unions. The FWC found that the agreement provided a fair and reasonable balance of benefits and did not disadvantage the employees. It concluded that the agreement met the BOOT, as it offered improvements in certain areas such as increased wages and better working conditions. The FWC also determined that the agreement complied with the general protections provisions of the Fair Work Act.

As a result, the FWC approved the Austral Brick NSW Transport Enterprise Agreement 2022, finding it to be a lawful and fair agreement that met the requirements of the Fair Work Act. The decision was made in favour of Austral Bricks, allowing the implementation of the new agreement. The unions' objections were dismissed, and the agreement was approved for application from the specified date.

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