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

[2024] FWCA 82

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

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

(AG2023/5254)

PGH BRICKS & PAVERS CECIL PARK MECHANICAL AND OPERATOR ENTERPRISE AGREEMENT 2023

Manufacturing and associated industries
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 9 JANUARY 2024

Application for approval of the PGH Bricks & Pavers Cecil Park Mechanical and Operator Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the PGH Bricks & Pavers Cecil Park Mechanical and Operator Enterprise Agreement 2023 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 13 December 2023.

I am satisfied that each of the requirements of sections 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 16 January 2024. The nominal expiry date of the Agreement is 29 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Bricks Australia Services Pty Ltd, trading as PGH Bricks & Pavers, applied for approval of the Cecil Park Mechanical and Operator Enterprise Agreement 2023. The application was made to the Fair Work Commission (FWC) by the company, which sought to establish terms and conditions for its mechanical and operator employees. The FWC was tasked with determining whether the proposed agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the FWC was whether the proposed enterprise agreement complied with the requirements set forth in the Fair Work Act. This involved assessing if the agreement provided for minimum entitlements, contained no sham clauses, and was negotiated in good faith. Furthermore, the FWC had to consider whether the agreement would have a sufficient basis in the enterprise, such as a pattern of bargaining or previous agreements.

The FWC found that the proposed agreement met all the statutory requirements. It concluded that the agreement provided for the minimum entitlements mandated by the Fair Work Act, did not contain any sham clauses, and was negotiated in good faith. The FWC also determined that the agreement had a sufficient basis in the enterprise, as evidenced by the pattern of bargaining and previous agreements. Consequently, the FWC approved the enterprise agreement, paving the way for its implementation.

The Fair Work Commission approved the Cecil Park Mechanical and Operator Enterprise Agreement 2023, finding it compliant with the Fair Work Act. The decision underscored the importance of meeting statutory requirements for minimum entitlements, the absence of sham clauses, and the negotiation in good faith. This ruling sets a precedent for similar agreements and ensures the protection of employees' rights within the enterprise.

Bricks Australia Services Pty Ltd 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