PRC Hire Pty Ltd

[2024] FWCA 1845

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

PRC Hire Pty Ltd

(AG2024/1516)

PRC HIRE KEMERTON LITHIUM HYDROXIDE PROCESSING PLANT – EXPANSION PROJECT GREENFIELDS AGREEMENT

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 21 MAY 2024

Application for approval of the PRC Hire Kemerton Lithium Hydroxide Processing Plant - Expansion Project Greenfields Agreement

An application has been made for approval of a greenfields agreement known as the PRC Hire Kemerton Lithium Hydroxide Processing Plant - Expansion Project Greenfields Agreement (the Agreement). The application was made by PRC Hire Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union (CMFEU) and The Australian Workers’ Union (AWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Several inconsistencies arose in respect of particular clauses of the Agreement and the National Employment Standards (NES). The Applicant has opted to rely on the NES precedence clause at clause 4(3) of the Agreement to address the following issues:

(a)clause 17(5) of the Agreement provides that a casual employee who has been engaged by the employer for a regular sequence of periods of employment during a period of six months, has the right to elect to have their contract of employment converted to full-time or part-time employment if the employment is to continue beyond the conversion process. This appears to be inconsistent with s 66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least six months prior the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

(b)clause 42(2) of the Agreement provides that the employer and the majority of employees may agree to substitute a nominated public holiday to another day. This appears to be inconsistent with s115(3) of the Act which provides that such substitution may only occur by agreement between the employer and an employee.

(c)clause 43(1) of the Agreement provides for compassionate leave. However, it is silent in relation to circumstances of miscarriage or birth of a stillborn child. This appears to be inconsistent with s 104(1)(c) of the Act.
(d)clause 45(3) of the Agreement provides five days of paid family and domestic violence leave. This appears to be inconsistent with s 106A which provides 10 days of paid family and domestic violence leave.

Pursuant to s 53(2)(b) of the Act I note the Agreement was made with the CMFEU and AWU and that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 28 May 2024. The nominal expiry date of the Agreement is 21 May 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission reviewed an application by PRC Hire Pty Ltd for the approval of a greenfields agreement concerning the PRC Hire Kemerton Lithium Hydroxide Processing Plant – Expansion Project. The application was lodged under section 185 of the Fair Work Act 2009. This agreement was intended to cover the industrial relations aspects of the expansion project and was submitted for approval to ensure it met the legal requirements of the Act. The unions involved in the agreement were the Construction, Forestry and Maritime Employees Union and the Australian Workers’ Union, which were considered to represent the majority of employees under the agreement.

The court had to determine whether the agreement met the requirements of sections 186 and 187 of the Fair Work Act, and whether it was in the public interest to approve the agreement. Several discrepancies between the agreement and the National Employment Standards (NES) were identified. These discrepancies included provisions on the conversion of casual employment to full-time or part-time employment, the substitution of public holidays, compassionate leave, and paid family and domestic violence leave. The applicant proposed to address these inconsistencies by referencing the NES precedence clause within the agreement.

The Deputy President concluded that the agreement met the requirements of sections 186 and 187 of the Act and was in the public interest. The Deputy President approved the agreement, noting that it would come into effect on 28 May 2024, with a nominal expiry date of 21 May 2028. The decision was made in the context of ensuring that the agreement complied with the Act and protected the interests of employees as per the NES.

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