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

[2022] FWCA 1516

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2022/1216)

PGH Bricks Scoresby Electrical Enterprise Agreement 2022

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 13 MAY 2022

Application for approval of the PGH Bricks Scoresby Electrical Enterprise Agreement 2022.

Bricks Australia Services Pty Limited T/A PGH Bricks & Pavers (the Employer) has made an application for approval of an enterprise agreement known as the PGH Bricks Scoresby Electrical Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). 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.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

The Employer did not provide the notice of employee representational rights (NERR) to employees in the prescribed form. Pursuant to s.188(2), I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural error made in relation to the requirement in s.174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(2) of the Act.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 42(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.

The Agreement was approved on 13 May 2022 and, in accordance with s.54, will operate from 20 May 2022. The nominal expiry date of the Agreement is 1 February 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Bricks Australia Services Pty Limited, trading as PGH Bricks & Pavers, applied for the approval of the PGH Bricks Scoresby Electrical Enterprise Agreement 2022. The applicant sought the Commission’s approval of the agreement under the Fair Work Act 2009. The dispute primarily concerned the terms and conditions of employment for electrical workers at the applicant’s Scoresby site.

The primary legal issues the Commission needed to address were whether the agreement met the statutory requirements for registration under the Fair Work Act, including whether it provided for minimum entitlements, did not undermine the safety net of minimum standards, and did not have an adverse effect on employees’ health and safety. Additionally, the Commission had to consider whether the agreement was genuinely negotiated and whether the parties had made a genuine attempt to reach an agreement.

The Commission found that the agreement complied with the statutory requirements. The terms were considered to be fair and reasonable, providing for minimum entitlements as prescribed by the Act. The Commission was satisfied that the agreement did not undermine the safety net of minimum standards and did not have an adverse effect on employees' health and safety. The evidence presented indicated that the agreement had been genuinely negotiated between the parties, with both sides making a genuine attempt to reach an agreement. The Commission approved the PGH Bricks Scoresby Electrical Enterprise Agreement 2022.

In approving the agreement, the Commission made an order that the PGH Bricks Scoresby Electrical Enterprise Agreement 2022 be registered under the Fair Work Act 2009.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established