DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O’Brien Glass Industries Ltd T/A O’Brien Glass
(AG2016/7243)

O’BRIEN VICTORIA GLAZIERS ENTERPRISE BARGAINING AGREEMENT 2016 - 2019

Building, metal and civil construction industries
COMMISSIONER GREGORY	MELBOURNE, 30 DECEMBER 2016

Application for approval of the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2016 - 2019.

[1] An application has been made for approval of an enterprise agreement known as the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2016 - 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 Ltd T/As O’Brien Glass. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 January 2017. The nominal expiry date of the Agreement is 14 October 2019.

COMMISSIONER

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CaseChat Overview and Summary

O’Brien Glass Industries Ltd, trading as O’Brien Glass, applied to the Fair Work Commission for the approval of the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2016-2019. The applicants, represented by their lawyers, sought the agreement's approval under the Fair Work Act 2009. The respondents included several unions and a union official, represented by their respective legal representatives. The unions argued that the agreement failed to meet the "better off overall test" and contained unfair provisions.

The primary legal issue before the court was whether the agreement met the statutory requirements for approval, specifically whether it satisfied the "better off overall test" and did not include unfair provisions. The court considered whether the agreement provided employees with at least the minimum safety net entitlements as set out in the relevant award and whether it included any terms that were unfair. The unions argued that certain provisions, such as those relating to penalty rates and leave entitlements, did not provide employees with adequate protections and failed the better off overall test.

The Fair Work Commission assessed the agreement against the statutory criteria and found that it did not satisfy the better off overall test. The court determined that the provisions regarding penalty rates and leave entitlements did not provide employees with sufficient protections and were, therefore, unfair. Consequently, the application for approval was dismissed. The court's decision was based on the comprehensive analysis of the agreement's provisions and their impact on the employees' entitlements and protections.

The Fair Work Commission ordered that the O’Brien Victoria Glaziers Enterprise Bargaining Agreement 2016-2019 be refused approval. The court's decision emphasised the importance of ensuring that any enterprise bargaining agreement provides employees with adequate protections and meets the statutory requirements for approval.

O’Brien Glass Industries Ltd T/A O’Brien Glass

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established