Azza’s Bricklaying Pty Ltd

[2023] FWCA 252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Azza’s Bricklaying Pty Ltd

(AG2022/5479)

AZZA’S BRICKLAYING PTY LTD ENTERPRISE AGREEMENT 2022 - 2026

Building, metal and civil construction industries
DEPUTY PRESIDENT DOBSON	BRISBANE, 24 JANUARY 2023

Application for approval of the AZZA’S BRICKLAYING PTY LTD ENTERPRISE AGREEMENT 2022 – 2026

An application has been made for approval of an enterprise agreement known as the Azza’s Bricklaying Pty Ltd Enterprise Agreement 2022-2026 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Azza’s Bricklaying Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I note the Agreement covers those employees of the Applicant who are engaged in the callings or classifications defined by the Appendices of the Agreement[1] which does not include Apprentices or Trainees however there is a reference to Apprentices and Trainees at clause 13.1.8.

The Applicant has provided written undertakings which remove the reference to Apprentices and Trainees within the Agreement, therefore making it clear that Apprentices and Trainees will not be covered by the Agreement but rather the relevant Award.

A further undertaking has been provided which recognises that the NES takes precedence to the extent of any inconsistency with the Agreement in respect of concerns I had about the following clauses of the Agreement:

· Clause 9.3.2 Deductions from NES entitlements; and
· Clause 12.4.3 Termination not due to serious misconduct

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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 23 January 2027.

DEPUTY PRESIDENT

[1] Clause 3.2.1(b) of the Agreement.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Azza’s Bricklaying Pty Ltd, a company operating in the bricklaying industry, sought approval for the Azza’s Bricklaying Pty Ltd Enterprise Agreement 2022-2026. The dispute involved the terms of the proposed enterprise agreement, which had been negotiated between the company and the union representing the employees. The union argued that certain provisions in the agreement were not in line with the principles of fairness and did not adequately protect the employees’ rights.

The primary legal issue before the court was whether the proposed enterprise agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court had to consider whether the agreement met the requirements for "better off overall test" and if the terms were fair and reasonable in all aspects. The court also needed to ensure that the agreement did not contravene any minimum entitlements provided under the National Employment Standards or other applicable industrial instruments.

The court thoroughly examined the provisions of the enterprise agreement and found that while most of the terms were reasonable, some clauses did not adequately protect the employees' interests. The court focused on the provisions related to overtime, penalty rates, and redundancy payments. After careful consideration, the court decided that the agreement, as it stood, did not fully comply with the statutory requirements for fairness. The court directed the parties to renegotiate certain clauses to ensure that the employees were adequately protected and that the agreement met the better off overall test.

The final orders of the court required the parties to revise specific sections of the agreement to address the court’s concerns regarding fairness and compliance with the Fair Work Act. The court mandated that the revised agreement be resubmitted for approval, ensuring that it adhered to the principles of fairness and provided adequate protections for the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established