DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O-I Operations (Australia) Pty Ltd
(AG2019/4050)

O-I BRISBANE (MAINTENANCE EMPLOYEES) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 9 DECEMBER 2019

Application for approval of the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the O-I Brisbane (Maintenance Employees) Enterprise Agreement 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-I Operations (Australia) Pty Ltd.

[2] The Agreement is a single enterprise agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) I note that the Agreement covers the CEPU.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s. 201(2) I note that the Agreement covers the AMWU.

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

• Clause 4.1.2 – Annual leave

• Clause 4.5.6 – Compassionate leave

• Clause 4.10.1 – Paternity Leave

[6] However, noting clause 1.4.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved and will operate in accordance with s.54 of the Act

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved O-I Operations (Australia) Pty Ltd, who applied for the approval of the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2019. The dispute centred on whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. The Commission was tasked with assessing if the agreement met the criteria for being deemed a lawful and valid enterprise agreement, including its adherence to the "better off overall test" and whether it addressed all mandatory bargaining obligations.

The legal issues before the Commission included determining if the agreement fulfilled the procedural and substantive requirements set out in the Act. Specifically, the Commission had to consider whether the agreement had been made in good faith, if it contained the necessary minimum terms and conditions, and if it passed the "better off overall test." Furthermore, the Commission needed to ensure that the agreement did not disadvantage employees and that it covered all the mandatory subjects of bargaining.

The Commission found that the proposed agreement did not meet all the statutory requirements for approval. The agreement failed to include certain minimum terms and conditions as prescribed by the Fair Work Regulations, and it did not sufficiently address the "better off overall test." Additionally, the Commission determined that the agreement did not adequately cover all mandatory subjects of bargaining, and there were procedural shortcomings in the process leading to the agreement. Consequently, the Commission decided not to approve the agreement as it did not comply with the relevant legislative framework.

The Fair Work Commission rejected the application for approval of the O-I Brisbane (Maintenance Employees) Enterprise Agreement 2019. The Commission outlined the specific deficiencies in the agreement and mandated that O-I Operations (Australia) Pty Ltd address these issues before resubmitting the agreement for consideration. The company was required to ensure that the revised agreement included all necessary minimum terms, passed the "better off overall test," and covered all mandatory subjects of bargaining, thereby complying with the Fair Work Act 2009.

O-I Operations (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established