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

[2022] FWCA 532

[2022] FWCA 532

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

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

(AG2021/9116)

PGH Bricks & Pavers Thomastown Enterprise Agreement 2021 - 2024

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 17 FEBRUARY 2022

Application for variation of the PGH Bricks & Pavers Thomastown Enterprise Agreement 2021-2024

1. An application has been made for approval of a variation to the PGH Bricks & Pavers Thomastown Enterprise Agreement 2021-2024 (the Agreement). The application was made by Bricks Australia Services Pty Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

1. The application seeks to substitute the table of allowances appearing in Schedule B of the Agreement. The variation also substitutes the paid meal break provision at clause 11(f)(v) of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

1. The variation was made on 9 December 2021 when a majority of the affected employees’ cast a vote to approve the variation. The proposed variation was agreed to by the Construction, Forestry, Maritime, Mining and Energy Union and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU).

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any affected employee for the variation and that the undertakings will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings 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 ss.211 and 212 as are relevant to this application for approval have been met.

1. I observe that the approval decision[1] for the Agreement issued on 28 July 2021 accepted written undertakings filed by the Applicant to meet the requirements of ss.186 and 187. The written undertakings were filed to address concerns raised in relation to clause 18(c)(i). Those undertakings form part of the Agreement and remain relevant to the Agreement as varied.

1. I observe that clauses 17(c) and 21(d) are likely to be inconsistent with the National Employment Standards (NES). However, noting the NES precedence clause at clause 43(c), I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I further observe that the approval decision referred to clauses 17(c) and 21(d) with respect to NES inconsistency.

1. The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision

1. In accordance with s.216 of the Act, the variation operates from 17 February 2022.

COMMISSIONER

[1] [2021] FWCA 4466

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