Chevron Glass Pty Ltd

[2025] FWCA 1037

[2025] FWCA 1037

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Chevron Glass Pty Ltd

(AG2025/565)

CHEVRON GLASS PTY LTD ROYAL PARK COLLECTIVE BARGAINING AGREEMENT 2025

Building services
COMMISSIONER ALLISON	MELBOURNE, 12 MAY 2025

Application for approval of the Chevron Glass Pty Ltd Royal Park Collective Bargaining Agreement 2025

1. Chevron Glass Pty Ltd (the Employer) has made an application, pursuant to s.185 of the Fair Work Act 2009 (the Act), for approval of a single enterprise agreement known as the Chevron Glass Pty Ltd Royal Park Collective Bargaining Agreement 2025 (the Agreement).

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

1. Clause 1.7 of the Agreement states that the model flexibility term from the Act shall apply in relation to individual flexibility arrangements but does not set out the contents of the model flexibility term in full. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. Appendix C, Clause 3.17, does not provide an additional week of notice to employees over the age of 45 who have been more than 2 years as required by the National Employment Standards at s.117 of the Act. The Employer provided an undertaking to resolve this concern.

1. In relation to the rates of pay comparison for the Better Off Overall Test (BOOT), the Employer submitted that the Agreement applies to a glazing factory, and therefore the allowances referred to in 21.3(b) of the Joinery and Building Trades Award 2020 (the Award) were not relevant. I accept this submission and note the Employer’s undertaking to this effect.

1. I expressed a further BOOT concern specifically in relation to afternoon and night shift, being that:  

a.The Agreement rate for afternoon and night shifts are the same as the Award.

b.The Award includes penalties for working Sunday evening and public holiday evenings.

c.Clause 5.1.4.2 of the Agreement operates to exclude employees from receiving penalties that they would be receiving under the Award.

1. The Agreement at clause 5.1.4.2 provides that where shifts commence between 8pm and midnight on a Sunday, the time so worked before midnight shall not entitle an employee to the Sunday or holiday rate. The wording of the clause implies that the period of work completed on Sunday between 8pm and midnight will not be paid at penalty rates. The Award provides for no such restriction, under the Award any work completed on a Sunday is paid at a 200% penalty.

1. The Employer initially submitted that an “Alternative working arrangement” had been reached between employees and the Employer in accordance with clause 26.1 of the Award. Clause 26.1 of the Award allows an employer and employees to reach an agreement to alter certain provisions in the Award relating to ordinary hours of work and overtime. While no direct evidence of such an arrangement being discussed and agreed upon between the Employer and employees was submitted, the Employer argued that the practice was long standing, and clause 5.1.4.2 in effect, recorded the arrangement in writing. The Employer also submitted that the previous Agreement had been approved with the same wording.

1. I expressed a preliminary view that I did not think the Agreement would pass the BOOT test with the inclusion of 5.1.4.2. While I accept that clause 26.1 of the Award allows an employer and employees to alter the ordinary hours and overtime provisions, there are specific requirements attached to making such an arrangement, and those requirements cannot just be subsumed by the general Agreement making process. In addition, the BOOT requires I find an employee is better off overall under an Agreement than under the Award. In circumstances where the employees under an Agreement are paid the same rate as employees under the Award, and the Agreement removes some penalty rates with no requirement for an Employer and employees to reach a specific arrangement on this matter, it is hard to see how an employee under the Agreement is better off.

1. Ultimately this matter was resolved by the Employer providing an undertaking that clause 5.1.4.2 does not apply. I accept that as the Award is incorporated into the Agreement, the Employer and the employees may choose to make an arrangement under clause 26.1 of the Award relating to this matter in the future.

1. A copy of the Employer undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. The Agreement as lodged contained several typographical and numbering errors, including:

• There were two Clauses both numbered 1.8, being Workplace Consultation and Workplace Delegates’ Rights.

• Clause 5.5.3, relating to employment on public holidays, erroneously referenced a clause 6.8 which does not exist.

• There were two subclauses numbered 5.1.4.2, both relating to shift work.

• One of the subclauses numbered 5.1.4.2, included further sub-clauses (a) and (b) which contained inaccurate references to clauses in a previous Modern Award.

1. I am satisfied that each of the above constituted an obvious error, defect, or irregularity, and I will amend the Agreement accordingly pursuant to s.218A of the Act.

1. I note that one of these amendments is to re-number the second instance of Clause 5.1.4.2 and its subclauses to Clause 5.1.4.4. I note this because the undertakings outlined in [10] above originally referred to Clause 5.1.4.2 as filed. Pursuant to s.586(a) of the Act, I find it appropriate to treat these undertakings as referring to Clause 5.1.4.4 instead, and I have done so.

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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 19 May 2025. The nominal expiry date of the Agreement is 12 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE528462  PR785524>

Annexure A

Note: Pursuant to paragraph [14] of the approval decision [2025] FWCA 1037, undertakings 3 and 4 will refer to Clause 5.1.4.4 instead of 5.1.4.2.