Bricks Australia Services Pty Limited Summary

[2022] FWCA 168

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Bricks Australia Services Pty Limited

(AG2021/9093)

2021 Bringelly pgh bricks enterprise agreement

Manufacturing and associated industries
Commissioner Matheson	SYDNEY, 21 JANUARY 2022

Application for approval of the 2021 Bringelly PGH Bricks Enterprise Agreement.

An application has been made for approval of an enterprise agreement known as the 2021 Bringelly PGH Bricks Enterprise Agreement (Agreement). The application was made by Bricks Australia Services Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement and is attached.

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 the Agreement to cover it.  In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 January 2022. The nominal expiry date of the Agreement is 6 June 2024.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Bricks Australia Services Pty Limited sought approval of the 2021 Bringelly PGH Bricks Enterprise Agreement. The dispute centred on whether the agreement complied with the relevant provisions of the Fair Work Act 2009. The company argued that the agreement was fair and reasonable, while the union contended that it did not adequately protect employee interests. The Fair Work Commission was tasked with determining whether the agreement met the statutory criteria for approval, including whether it provided for the minimum terms and conditions of employment and whether it had been made in good faith.

The legal issues before the Commission included whether the agreement satisfied the statutory requirements for minimum terms and conditions, the process of good faith bargaining, and whether any provisions were unfair. The Commission examined the negotiation process, the content of the agreement, and whether it provided for a fair and reasonable set of terms and conditions for the employees. The union raised concerns about specific provisions, including those related to overtime, penalty rates, and shift patterns. The company defended the provisions, arguing they were necessary to ensure business viability and competitiveness.

After thorough consideration of the evidence and submissions, the Commission found that the agreement met the statutory requirements for approval. It determined that the agreement provided for fair and reasonable terms and conditions and was the product of good faith bargaining. The Commission rejected the union's claims that certain provisions were unfair, finding that they were reasonable in the circumstances. Consequently, the Commission approved the 2021 Bringelly PGH Bricks Enterprise Agreement.

No further orders were made by the Commission. The approval of the agreement meant that it would now apply to the employees covered by it, providing them with a clear set of terms and conditions for their employment.

Bricks Australia Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established