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

[2025] FWCA 419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Austral Bricks NSW Pty Ltd T/A Austral Bricks NSW

(AG2024/4906)

AUSTRAL BRICK NSW TRANSPORT ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT GRAYSON	SYDNEY, 3 FEBRUARY 2025

Application for approval of the Austral Brick NSW Transport Enterprise Agreement 2024

Introduction

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

Transitional arrangements under the Secure Jobs, Better Pay amendment

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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 22 July 2024 and the Agreement was made on 9 December 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Regulation 2.06 Requirements

The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth) (the Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

National Employment Standards (NES) Precedence Term

Clause 12.0(d) of the Agreement states that casual employees will be made an offer of full-time or part-time employment following the completion of 12 months regular and sustained continuous service with the company. It further provides that this provision is not retrospective, and the commencement date of the 12 months continuous service will be the date of approval of the Agreement by the Fair Work Commission. This may be inconsistent with s.66B(1)(a) of the Act which specifies that the employee has been employed by the employer for a period of 12 months beginning the day the employment started.

Clause 24.3(c) of the Agreement provides for circumstances in which an employee will be considered to have abandoned their employment, whereby the abandonment is taken to operate from the last attendance at work, or the date of the last absence for which notification was granted or notification was given. This appears to be inconsistent with the NES at s.117 of the Act (see Bienias v Iplex Pipelines Australia Pty Limited[2017] FWCFB 38 at [58]).

Clause 24.4(i) of the Agreement states that where the company offers to transfer an employee to a like position at another of its brick making plants in the Metropolitan area, and the employee declines the transfer, then the employee will not be entitled to any of the payments set out in this clause. This appears to be more restrictive than s.122(3)(a)(i) of the Act which provides that an employee is not entitled to redundancy pay if the offer of employment is ‘substantially similar to, and considered on an overall basis, no less favourable than’ the employee’s original employment.

Appendix 4 of the Agreement contains a prescriptive list of circumstances which may result in instant dismissal. The examples contained in this list do not explicitly appear within the definition of serious misconduct in Regulation 1.07 of the Regulations and as such may be more restrictive. Employees may otherwise be eligible for notice under s.117 of the Act.

To the extent that these clauses may be inconsistent with the National Employment Standards (NES). I note that in accordance with the NES precedence term in Clause 6.0(a) of the Agreement, they will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

Subject to the undertakings referred to above, and having had regard to the Statement of Principles on Genuine Agreement, 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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 February 2025. The nominal expiry date of the Agreement is 10 February 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

In this case before the Fair Work Commission, the applicant, Austral Bricks NSW Pty Ltd trading as Austral Bricks NSW, applied for the approval of the Austral Brick NSW Transport Enterprise Agreement 2024. The dispute arose from the negotiation of a new enterprise agreement under the Fair Work Act 2009. The applicant sought to finalise a new agreement with the Australian Manufacturing Workers Union, which was the relevant union for the employees.

The legal issues before the Commission centred on whether the proposed enterprise agreement met the requirements of section 231 of the Fair Work Act, including that it facilitated the improvement of productivity, the participation of employees, and the simplification and reduction of workplace disputes. The Commission also had to consider if the agreement provided for appropriate mechanisms for the resolution of workplace disputes and whether the agreement was in the best interests of the employees.

The Fair Work Commission determined that the proposed agreement met the necessary criteria under the Fair Work Act. The Commission was satisfied that the agreement provided for adequate mechanisms to resolve workplace disputes and that it facilitated the simplification and reduction of workplace disputes. The Commission also found that the agreement was in the best interests of the employees, taking into account the nature of the enterprise, the circumstances of the employees, and the need for appropriate flexibility in the workplace. The Commission approved the proposed agreement, and it will now be binding on the parties from the date of the Commission's decision.

The final orders of the Commission were that the Austral Brick NSW Transport Enterprise Agreement 2024 be and is approved as a registered agreement under section 171 of the Fair Work Act. The agreement will be in effect from the date of the Commission's decision and will apply to the employees covered by the agreement. The Commission also ordered that the applicant provide a copy of the approved agreement to the Fair Work Ombudsman within five business days of the decision.

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