Australian Glass Install Pty Ltd T/A Australian Glass Install Pty Ltd Summary

[2024] FWCA 526

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Australian Glass Install Pty Ltd T/A Australian Glass Install Pty Ltd

(AG2024/159)

Australian Glass Install Pty Ltd / CFMEU South Australia Enterprise Agreement 2023

Building, metal and civil construction industries
COMMISSIONER THORNTON	ADELAIDE, 6 FEBRUARY 2024

Application for approval of the Australian Glass Install Pty Ltd / CFMEU South Australia Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Australian Glass Install Pty Ltd / CFMEU South Australia Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Glass Install Pty Ltd T/A Australian Glass Install Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Notice of Employee Representational Rights (NERR) provided to the employees was not in the prescribed form. It is in the form as prescribed prior to 6 June 2023. I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s.174(1)(A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by section 188(5) of the Act to disregard the minor technical error.

The Construction, Forestry, and Maritime Employees Union (CFMEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Australian Glass Install Pty Ltd, trading as Australian Glass Install Pty Ltd, has applied for approval of a single-enterprise agreement, the Australian Glass Install Pty Ltd / CFMEU South Australia Enterprise Agreement 2023. The application was lodged with the Fair Work Commission under section 185 of the Fair Work Act 2009. The Agreement is intended to cover employees in the building, metal, and civil construction industries. The Commission was required to determine whether the agreement met the statutory requirements for approval and if it had been genuinely agreed upon by the parties involved.

The primary legal issue before the Commission was whether the Agreement met the criteria set out in sections 186, 187, and 188 of the Act. Specifically, the Commission had to ascertain whether the Agreement was genuinely agreed upon by the relevant parties and if it complied with the legislative requirements. The Commission also needed to consider whether a minor technical error in the Notice of Employee Representational Rights (NERR) should prevent the approval of the Agreement. Additionally, the Commission had to determine if the Agreement would cover the Construction, Forestry, and Maritime Employees Union (CFMEU), as per the statutory declaration lodged by the CFMEU.

The Commission found that the Agreement had been genuinely agreed upon by the Applicant and the CFMEU, notwithstanding a minor technical error in the NERR. The Commission determined that the error did not disadvantage the employees and was minor enough to be disregarded under section 188(5) of the Act. Furthermore, the Commission concluded that the Agreement complied with all other relevant statutory requirements and would cover the CFMEU as intended. Therefore, the Commission approved the Agreement, which will operate from 13 February 2024 until its nominal expiry date of 30 June 2025. The Commissioner exercised the discretion to overlook the minor procedural error in the NERR, finding it did not undermine the genuineness of the agreement or disadvantage the employees.

Australian Glass Install Pty Ltd T/A Australian Glass Install Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established