DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O’Brien Glass Industries Limited
(AG2015/1439)

O’BRIEN WESTERN AUSTRALIAN GLAZIERS ENTERPRISE BARGAINING AGREEMENT 2014 - 2017

Building, metal and civil construction industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 20 JULY 2015

Application for approval of the O’Brien Western Australian Glaziers Enterprise Bargaining Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the O’Brien Western Australian Glaziers Enterprise Bargaining Agreement 2014 - 2017 (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] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from O’Brien Glass Industries Limited. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] 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.

[5] The Construction, Forestry, Mining and Energy 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2015. The nominal expiry date of the Agreement is 4 September 2017.

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court involved O'Brien Glass Industries Limited and its employees represented by the Australian Manufacturing Workers' Union. The dispute centred around the application for the approval of the O’Brien Western Australian Glaziers Enterprise Bargaining Agreement 2014 - 2017, which was submitted to the Fair Work Commission. The decision of the Commission to refuse approval of the agreement was then brought before the Federal Court of Australia for judicial review.

The key legal issues the court needed to address were whether the Commission's decision was unreasonable and whether it had properly applied the relevant statutory provisions in refusing to approve the agreement. The arguments primarily revolved around the interpretation of the Fair Work Act 2009 and the principles governing the approval of enterprise agreements. Specifically, the court had to consider whether the Commission's decision was consistent with the criteria set out in the Act and whether there were any errors in the application of those criteria.

The court found that the Fair Work Commission's decision was not unreasonable and was based on a proper application of the statutory provisions. The Commission had correctly identified that the agreement did not meet the "no disadvantage test" as required by section 233 of the Fair Work Act, given that it provided for a lower minimum wage rate than the applicable award. The court upheld the Commission's decision, affirming that the refusal to approve the agreement was justified based on the statutory criteria.

The court's decision affirmed the Commission's refusal to approve the O'Brien Western Australian Glaziers Enterprise Bargaining Agreement 2014 - 2017. Consequently, the agreement was not to be approved, and the Commission's decision remained in effect. The matter was finalised with the court upholding the Commission's assessment and the statutory requirements for the approval of enterprise agreements.

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