PRC Hire Pty Ltd

[2024] FWCA 1845

[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

1. 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).

1. 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.

1. 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.

1. 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.

1. 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

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