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

[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

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).

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.

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).

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.

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.

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.

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.

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

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

COMMISSIONER

[1] [2021] FWCA 4466

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Bricks Australia Services Pty Limited, trading as PGH Bricks & Pavers, and the Construction, Forestry, Maritime, Mining and Energy Union. The dispute centred around an application by the employer to vary the Thomastown Enterprise Agreement 2021-2024. The application sought changes to certain provisions of the agreement, including those related to pay rates, hours of work, and other employment conditions. The Fair Work Commission was tasked with determining whether the proposed changes were appropriate under the Fair Work Act 2009.

The primary legal issues the Commission had to address were whether the proposed changes were necessary, if they were consistent with the principles of good faith bargaining, and if they complied with relevant provisions of the Fair Work Act. The Commission also had to consider whether the changes were justifiable under the circumstances and if they balanced the interests of both the employer and the employees. Additionally, the Commission needed to assess the impact of the proposed changes on the employees' conditions of employment and the overall fairness of the agreement.

In reaching its decision, the Commission examined the evidence presented by both parties and the broader economic context. It found that the employer had demonstrated a genuine need for the proposed changes due to significant financial pressures and changes in the business environment. The Commission concluded that the changes were necessary to maintain the viability of the enterprise and that they were made in good faith. The proposed changes were deemed to be fair and reasonable, taking into account the interests of both the employer and the employees. The Commission approved the variations, noting that they would help to ensure the continued operation of the business while also maintaining a fair balance between the parties.

The final orders of the Commission were that the Thomastown Enterprise Agreement 2021-2024 be varied as proposed by the employer. The specific changes included adjustments to pay rates, hours of work, and other employment conditions, as outlined in the application. The variations were effective from the date of the decision and applied to all employees covered by the agreement. The Commission emphasised the importance of continued good faith bargaining between the parties to address any future issues that may arise.

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