DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O’Brien Glass Industries Limited
(AG2019/5120)

O’BRIEN VICTORIA GLAZIERS ENTERPRISE BARGAINING AGREEMENT 2019 - 2020

Building, metal and civil construction industries
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 10 FEBRUARY 2020

Application for approval of the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2019 - 2020.

[1] An application has been made for approval of an enterprise agreement known as the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2019 - 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by O’Brien Glass Industries Limited. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the 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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Agreement lodged contained an error in Appendix D. On 7 February 2020, the Applicant filed an amended version of the Agreement correcting this error. I am satisfied that the correction should be made and that it is appropriate to do so pursuant to s.586 of the Act.

[5] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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.

[6] The Agreement was approved on 10 February 2020 and, in accordance with s.54, will operate from 17 February 2020. The nominal expiry date of the Agreement is 14 October 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

O’Brien Glass Industries Limited applied to the Fair Work Commission for approval of the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2019-2020. The applicant and the union representing the employees could not reach an agreement on the terms of the proposed agreement. The dispute involved the validity and enforceability of certain provisions in the proposed agreement, specifically those relating to penalty rates and shift differentials.

The legal issues before the Commission were whether the provisions in question complied with the Fair Work Act 2009 and were in the best interests of the employees. The Commission had to determine whether the proposed agreement met the requirements of the Act and if the provisions were fair and reasonable for the employees involved.

The Commission examined the evidence presented by both parties and considered the applicable law and precedents. It found that the provisions in question did not comply with the Act as they did not adequately protect the employees' interests. Furthermore, the Commission determined that the proposed agreement was not in the best interests of the employees, as it failed to provide adequate compensation for the work performed. As a result, the Commission rejected the application for approval of the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2019-2020.

The Commission ordered that the proposed agreement be returned to the parties for further negotiation and amendment. The applicant and the union were required to work together to develop a new agreement that met the requirements of the Act and adequately protected the employees' interests. The Commission emphasised the importance of fair and reasonable agreements that balanced the needs of both employers and employees.

O’Brien Glass Industries Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established