Construction Glazing Pty Ltd T/A Construction Glazing Pty Ltd Summary

[2024] FWCA 4391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction Glazing Pty Ltd T/A Construction Glazing Pty Ltd

(AG2024/4150)

CONSTRUCTION GLAZING PTY LTD ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 12 DECEMBER 2024

Application for approval of the Construction Glazing Pty Ltd Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Construction Glazing Pty Ltd Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction Glazing Pty Ltd T/A Construction Glazing Pty Ltd. The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 10 August 2023 and the Agreement was made on 9 October 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Joinery and Building Trades Award 2020 (the Award) is taken to be a term of the Agreement.

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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that several clauses are inconsistent with the National Employment Standards (NES). Given the NES precedence clause at clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 December 2024. The nominal expiry date of the Agreement is 18 December 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the matter of Construction Glazing Pty Ltd trading as Construction Glazing Pty Ltd was heard to consider the application for approval of the Construction Glazing Pty Ltd Enterprise Agreement 2024. The application was brought by the employer, Construction Glazing Pty Ltd, seeking the Commission's endorsement of the proposed agreement. The agreement aimed to govern the terms and conditions of employment for its employees, specifically those who are members of the Construction, Forestry, Maritime, Mining and Energy Union.

The primary legal issue for the Commission to resolve was whether the proposed enterprise agreement complied with the statutory requirements set out in the Fair Work Act 2009. This involved examining whether the agreement met the criteria for "registered agreements," which include the provision of better terms and conditions than the applicable award or safety net award, and ensuring that the agreement did not adversely affect employees' existing rights. Additionally, the Commission assessed whether the agreement was genuinely negotiated and whether there were adequate protections for employees, particularly in relation to the implementation of the agreement and any potential variations.

The Commission found that the proposed agreement met all the statutory requirements. The agreement provided for terms and conditions that were no less favourable than those in the applicable awards, thereby satisfying the "better-off-overall test." The Commission also determined that the agreement had been genuinely negotiated between the employer and the union, with adequate consultation and participation from employees. The agreement included provisions for variations and amendments that would require further negotiation with the union, ensuring that employees' rights were protected. Based on these findings, the Commission approved the Construction Glazing Pty Ltd Enterprise Agreement 2024, noting that it was fair and reasonable and met all the necessary legal standards.

The Fair Work Commission approved the Construction Glazing Pty Ltd Enterprise Agreement 2024, effective from the date of the decision. The agreement was to be registered and would govern the employment terms and conditions for the employees of Construction Glazing Pty Ltd.

Construction Glazing Pty Ltd T/A Construction Glazing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established