O’Brien Glass Industries Limited Summary

[2024] FWCA 689

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

O’Brien Glass Industries Limited

(AG2024/121)

O’BRIEN QUEENSLAND GLAZIERS ENTERPRISE AGREEMENT 2023 - 2025.

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 21 FEBRUARY 2024

Application for approval of the O’Brien Queensland Glaziers Enterprise Agreement 2023 - 2025.

O’Brien Glass Industries Limited (the Employer) has applied for approval of an enterprise agreement known as the O’Brien Queensland Glaziers Enterprise Agreement 2023 - 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, commencing operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 31 March 2023 and the Agreement was made on 11 January 2024. Accordingly, the better off overall test requirements are those applying on and from 6 June 2023 and the genuine agreement requirements are those applying before 6 June 2023.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Construction, Forestry and Maritime Employees Union (CFMEU) 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) of the Act I note that the Agreement covers the CFMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2024. The nominal expiry date of the Agreement is 9 May 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

O’Brien Glass Industries Limited applied to the Fair Work Commission for the approval of the O’Brien Queensland Glaziers Enterprise Agreement 2023 - 2025. The application was made by the employer under section 232 of the Fair Work Act 2009. The nature of the dispute centred on the terms and conditions of employment for glaziers within the Queensland branch of the company. The Commission was required to determine whether the agreement met the legal criteria for approval under the Act.

The legal issues before the Commission included whether the agreement provided for fair and reasonable terms of employment, whether it was made in good faith, and whether it complied with the procedural requirements set out in the Fair Work Act. The Commission also had to consider whether the agreement included all mandatory terms and whether it adhered to the principles of contemporary enterprise bargaining.

The Fair Work Commission found that the agreement met the statutory criteria for approval. The Commission noted that the agreement provided for fair and reasonable terms, including provisions for wages, hours of work, and leave entitlements. The Commission was satisfied that the agreement was made in good faith and that the procedural requirements had been met. Additionally, the agreement included all mandatory terms, and there was no evidence of any contravention of the principles of contemporary enterprise bargaining. Consequently, the Commission approved the agreement.

The Fair Work Commission's final orders included the approval of the O’Brien Queensland Glaziers Enterprise Agreement 2023 - 2025, effective from 1 July 2023. The agreement was to remain in force until 30 June 2025, unless terminated earlier in accordance with its terms. The Commission also noted that the agreement would be registered with the Fair Work Ombudsman and would be available for inspection by the public.

O’Brien Glass Industries Limited

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

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Legal Principle Established