Brickwood Victoria Pty Ltd T/A Brickwood

[2022] FWCA 1044

[2022] FWCA 1044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Brickwood Victoria Pty Ltd T/A Brickwood

(AG2022/295)

Brickwood Victoria Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 24 MARCH 2022

Application for approval of the Brickwood Victoria Enterprise Agreement 2021

1. Brickwood Victoria Pty Ltd T/A Brickwood (the Applicant) has made an application for approval of an enterprise agreement known as the Brickwood Victoria Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 February 2022.

1. In order for an agreement to be approved s.186(2)(d) requires the Commission to be satisfied that it passes the better off overall test (the BOOT), the requirements for which are set out in s.193. The test requires the identification of terms which are more beneficial for an employee, terms which are less beneficial, and an overall assessment of whether an employee would be better off under the agreement. The overall assessment involves a global comparison in relation to each award covered and prospective award covered employee; CFMEU v KAEFER Integrated Services Pty Ltd[2017] FWCFB 5630, [9].

1. Despite that fact and that the Agreement does not include a wages schedule I am satisfied the BOOT is nonetheless passed with me relying upon material within the Employer’s Declaration in support of the application (the Form F17) signed by Dean Bacarella, the Applicant’s People and Culture Manager, dated 7 February 2022, and a statutory declaration and annexure signed by Wayne Thomas, the Applicant’s Group Manager - Employee Relations, and dated 17 March 2022.

1. The Form F17 is declared on the basis of its contents being accurate and that the giving of false or misleading information within it is a serious offence. Mr Bacarella declares “yes” in response to Question 10 which asks if the Agreement contains any terms or conditions of employment that are more beneficial than equivalent terms and conditions in the reference modern awards. The statutory declaration dated 17 March 2022 is accompanied by an annexure marked “Annexure A” specifying the range of rates that will be paid to employees on approval of the Enterprise Agreement. I note that annexure A is signed by the Employer and a bargaining representative.

1. I accept and rely upon Mr Bacarella’s declarations to the Commission as demonstrating that the wage rates paid by Brickworks under the Agreement are in every case higher than those payable under the reference modern awards. The undertaking, sought by the Commission and provided by the Applicant, which is now a term of the agreement pursuant to s.191, further confirms satisfaction that the BOOT is passed and that the Applicant’s commitments are enforceable. A copy of this undertaking can be found at the end of the Agreement.

1. On 21 February 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

·  Chambers sought clarification regarding the notification time and provision of the NERR.

·  The parties were notified that the Agreement will operate from 7 days after approval by the Commission.

·  Chambers sought clarification regarding the employees intended to be covered by the Agreement.

·  The Agreement did not contain a definition of shiftworker for the purposes of the NES.

·  Parties were notified that should the Agreement be approved, the model consultation and flexibility terms will be inserted into the Agreement.

·  Clauses 17.1, 18.3, 22.1.6 regarding termination, clauses 37.9.1, 37.11.3, 37.12.1 regarding annual leave, clauses 17.2.4, 39 regarding compassionate leave, clauses 22.5.1, 38.1.3, 38.4 regarding personal/carer’s leave, clause 36 regarding long service leave and clauses 44.6.1, 44.6.2 regarding public holidays may be inconsistent with the National Employment Standards (NES) however the NES precedence term contained at clause 9.2.1 of the agreement is deemed to resolve the NES inconsistencies identified in the agreement.

·  Chambers raised better off overall concerns regarding junior rates, supported wage entitlements, trainee rates and Sunday rates of pay.

1. The Applicant has submitted an undertaking in the required form dated 17 March 2022 The undertaking deals with the following topics:

·  The Employer provided a definition of shift worker for the purposes of the National Employment Standards (NES).

·  The Company undertakes to pay employees covered by the Agreement minimum wages and allowances (where applicable) of not less than the Wages and allowances contained in the confidential exhibit marked as “Annexure A” to the Statutory Declaration of Wayne Thomas signed 17 March 2022. Where penalty rates or loadings are payable under the Agreement, such penalties and loadings will be paid by references to the wages paid to employees in accordance with the confidential exhibit marked as “Annexure A” to the statutory declaration of Wayne Thomas signed 17 March 2022.

·  The confidential exhibit marked as “Annexure A” to the statutory declaration of Wayne Thomas signed 17 March 2022, will be made available to any employee covered by the Agreement and any union party to the Agreement upon request.

·  In respect of better off overall issues relating to junior rates, supported wage entitlements and trainees, the Applicant has provided rates that are better off than the rates contained in the Manufacturing and Associated Industries and Occupations Award 2020.

·  With regards to clause 35 Sunday Work of the Agreement, the Company undertakes that any work performed on a Sunday will be paid at Sunday rates.

1. A copy of the undertaking has been provided to the bargaining representatives and I have sought their view in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

1. The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

1. As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

1. As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU) and the United Workers’ Union (UWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 31 August 2025.

COMMISSIONER

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