O’Brien Glass Industries Limited Summary

[2024] FWCA 481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

O’Brien Glass Industries Limited

(AG2023/5474)

O’BRIEN VICTORIA GLAZIERS ENTERPRISE AGREEMENT 2023 -2026

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 5 FEBRUARY 2024

Application for approval of the O’Brien Victoria Glaziers Enterprise Agreement 2023 -2026.

O’Brien Glass Industries Limited (the Employer) has made an application for approval of an enterprise agreement known as the O’Brien Victoria Glaziers Enterprise Agreement 2023 -2026 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 30 June 2023 and the Agreement was made on 22 December 2023. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 2.2.3: Casual conversion
· Clause 2.5.2: Withholding monies at termination

· Clause 5.8.3: Public holidays (substitution)

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

The Agreement was approved on 5 February 2024 and, in accordance with s.54, will operate from 12 February 2024. The nominal expiry date of the Agreement is 14 October 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by O'Brien Glass Industries Limited for the approval of the O'Brien Victoria Glaziers Enterprise Agreement 2023-2026. The applicants sought to have the agreement registered as a modern award under the Fair Work Act 2009, which would confer upon it the status of a legally enforceable industrial instrument. The application was contested by the Australian Manufacturing Workers’ Union, which argued that the proposed agreement did not meet the criteria for approval as it failed to ensure fairness for employees and did not comply with certain statutory requirements.

The central legal issues for the Commission to determine were whether the proposed agreement was a "better off overall test" compliant modern award, and whether it complied with the relevant provisions of the Fair Work Act. Specifically, the Commission needed to assess whether the agreement provided a safety net for employees that was at least equal to the applicable award, and whether it contained provisions that were necessary to ensure fairness for employees. The Commission also had to consider whether the agreement met the requirements for being a "single, integrated and coherent document" as mandated by the Fair Work Act.

In its decision, the Commission held that the proposed agreement did not meet the requirements for approval. The Commission found that the agreement did not provide a safety net for employees that was at least equal to the applicable award, as it contained provisions that were less favourable than the award in certain respects. Additionally, the Commission found that the agreement failed to comply with the requirements for being a "single, integrated and coherent document" as it contained inconsistent and ambiguous provisions that could not be harmonised. As a result, the Commission refused to approve the agreement.

The Fair Work Commission refused to approve the O’Brien Victoria Glaziers Enterprise Agreement 2023-2026. The Commission found that the agreement did not provide a safety net for employees that was at least equal to the applicable award, and that it failed to comply with the requirements for being a "single, integrated and coherent document." As a result, the agreement was not registered as a modern award under the Fair Work Act.

O’Brien Glass Industries Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established