Bricks Australia Services Limited T/A PGH Bricks & Pavers Pty Limited

[2020] FWC 6279

[2020] FWC 6279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Bricks Australia Services Limited T/A PGH Bricks & Pavers Pty Limited
(AG2020/2660)

Manufacturing and associated industries
COMMISSIONER MCKINNON	MELBOURNE, 24 NOVEMBER 2020

Application for variation of the PGH Bricks & Pavers Thomastown Enterprise Agreement 2017 - 2020 – whether variation made – application not approved.

[1] Application has been made by Bricks Australia Services Limited (Bricks Australia) (ACN 604 616 908) for approval of a variation to the PGH Bricks & Pavers Thomastown Enterprise Agreement 2017 – 2020 (the Agreement). The application seeks to vary clause 7(a)(v), Schedule A, and Schedule B of the Agreement.

[2] Clause 3 of the Agreement deals with who is covered by the Agreement. The Agreement is expressed to cover PGH Bricks Pty Limited (ABN 68 168 794 821) (PGH) and its employees employed in the classifications at cl 10 of the Agreement at the Thomastown plant. 1 The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are also covered by the Agreement.

[3] The difficulty is that the relevant employees are employed by Bricks Australia, not PGH. Bricks Australia provides employment services to PGH. While the parties to this application acknowledge that there is a discrepancy between coverage of the Agreement and the employment arrangements in practice, they contend that reference to “the employer” at clause 3(a)(i) of the Agreement as PGH Bricks Pty Limited (including its Australian Business Number) is an error and that it has always been understood that the Agreement covers relevant employees of Bricks Australia.

[4] It does not appear to be the case that there has been any transfer of employment from PGH to Bricks Australia such that Bricks Australia could be said to be covered by the Agreement in its own right, or so that employees are covered by the Agreement as transferring employees. Historically, employees were employed by a third entity, Boral Bricks Pty Ltd (ACN 082 448 342). Forty-six employees of Boral Bricks transferred their employment to Bricks Australia from 1 May 2015. The employees were not previously employed by PGH.

No variation has been made

[5] An enterprise agreement covers the employer(s) it is expressed to cover.

[6] Except in the case of ambiguity, uncertainty or discrimination, a single enterprise agreement can only be varied by agreement between the employer and employees who are and will be covered by the agreement if the variation is approved. 2 An employer who is covered by an enterprise agreement may request relevant employees to approve an agreement variation by vote.3 The variation is made when a majority of those employees vote to approve the variation.4 It goes without saying that an application to the Commission for approval of an agreement variation can only occur once the variation has been jointly made by the employer and relevant employees.5

[7] In this case, clause 3 of the Agreement expressly provides that PGH is the employer covered by the Agreement. The Agreement is not expressed to cover Bricks Australia. None of the employees who voted to approve the variation are or were employees of PGH. At all relevant times, they were employees of Bricks Australia.

[8] In the circumstances, I am unable to conclude that the variation has been made by the employer and relevant employees. Those who made the variation had no standing to do so, or even to apply for the variation to be approved. There is no valid application before me.

Can the identity of the employer be changed by the exercise of discretion?

[9] The parties seek that I exercise my discretion under section 586 of the Fair Work Act 2009 (Cth) (Act) to correct or amend clause 3 of the Agreement by replacing the words “PGH Bricks Pty Limited (ABN 68 168 794 821)” with the words “Bricks Australia Services Pty Ltd (ABN 604 616 908)”. The correction is said to give effect to the intent of the parties and to the genuine agreement of the employees who voted upon the proposed variation to the Agreement.

[10] In circumstances where no valid application has been made to the Commission, I doubt that I have power to make the correction sought. Even if I did, I do not consider that section 586 would permit such a correction to be made because what is sought is to alter the identity of the employer – a matter of foundational importance in the creation of rights and obligations under the Agreement.

[11] I decline to amend clause 3 in the manner sought.

Conclusion

[12] Bricks Australia is not an employer covered by the Agreement or the proposed variation of the Agreement. It has no standing to bring the application. Further, the variation was not made by the employer and employees employed at the time who are, or will be, covered by the Agreement. The application is incompetent and is dismissed.

[13] The application gives rise to a related and significant issue as to whether the Agreement itself has been validly made. Regrettably, this matter was not identified at or prior to the time the Agreement was approved. It is a matter for the parties to consider how best to address the anomaly to protect the interests of all concerned as a matter of priority.

COMMISSIONER

Final written submissions:

Applicant, 26 October 2020.
CFMMEU, 26 October 2020.
AMWU, 4 November 2020.

Printed by authority of the Commonwealth Government Printer

<AE427323 PR724797>

 1   Agreement, cl 3(b).

 2   Fair Work Act 2009 (the Act), s.207(1)(a).

 3   The Act, s.208.

 4   The Act, s.209(1).

 5   The Act, s.210(1); s.211(1).