DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O’Brien Glass Industries Limited T/A O’Brien Glass Industries Limited
(AG2018/1384)

O’BRIEN® NEW SOUTH WALES GLAZIERS ENTERPRISE BARGAINING AGREEMENT 2017-2019

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 24 JULY 2018

Application for approval of the O’Brien® New South Wales Glaziers Enterprise Bargaining Agreement 2017-2019.

[1] An application has been made for approval of an enterprise agreement known as the O’Brien® New South Wales Glaziers Enterprise Bargaining Agreement 2017-2019 (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 T/A 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.

[3] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, 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.

[4] The Construction, Forestry, Maritime, 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 24 July 2018 and, in accordance with s.54, will operate from 31 July 2018. The nominal expiry date of the Agreement is 31 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the recent case of O’Brien Glass Industries Limited T/A O’Brien Glass Industries Limited, the Fair Work Commission was tasked with the consideration of an application for the approval of the O’Brien® New South Wales Glaziers Enterprise Bargaining Agreement 2017-2019. The applicant, O’Brien Glass Industries Limited, sought to have the agreement approved under the Fair Work Act 2009, as it had been negotiated with and accepted by the relevant trade union, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The dispute primarily revolved around whether the agreement met the legal standards and procedural requirements for its approval under the Act.

The primary legal issues before the Commission were whether the agreement was genuinely negotiated and whether it met the ‘better off overall test’. This test ensures that employees are not worse off financially as a result of the agreement, compared to their previous conditions. Additionally, the Commission had to consider whether the agreement complied with the requirements set out in the Fair Work Act, including procedural fairness and the absence of any contravention of public policy. The Commission also examined whether the agreement contained any terms that might be considered contrary to the national workplace relations system.

In delivering its decision, the Commission meticulously reviewed the evidence presented by both parties, including the negotiation process, the terms of the agreement, and the impact on the employees. The Commission found that the agreement had been genuinely negotiated and that it passed the better off overall test. The terms of the agreement were deemed to be fair and reasonable, and there was no evidence of any contravention of public policy. The Commission was satisfied that the negotiation process was conducted in a manner that was procedurally fair and in compliance with the statutory requirements. Consequently, the Commission approved the O’Brien® New South Wales Glaziers Enterprise Bargaining Agreement 2017-2019.

The Fair Work Commission approved the O’Brien® New South Wales Glaziers Enterprise Bargaining Agreement 2017-2019, finding that it had been genuinely negotiated, met the better off overall test, and complied with the statutory requirements of the Fair Work Act 2009. The agreement is now in force and will govern the employment conditions of the relevant employees for the specified period.

O’Brien Glass Industries Limited T/A 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