DECISION

Fair Work Act 2009
s.185—Enterprise agreement

O-I Operations (Australia) Pty Ltd T/A O-I Australia
(AG2019/4367)

O-I MELBOURNE (GLASSWORKERS) ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 4 DECEMBER 2019

Application for approval of the O-I Melbourne (Glassworkers) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the O-I Melbourne (Glassworkers) 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 T/A O-I Australia. 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 Australian Workers’ 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] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 15.1.15 – Annual Leave (Batch and Furnace)

• Clause 15.1.16 – Annual Leave (Batch and Furnace)

• Clause 4.4 – Long Service Leave

• Clause 4.8 – Public Holidays

However, noting clause 4.1 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 December 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, O-I Operations (Australia) Pty Ltd, trading as O-I Australia, sought approval of the O-I Melbourne (Glassworkers) Enterprise Agreement 2019 from the Fair Work Commission. The Fair Work Ombudsman opposed the application, raising concerns about certain provisions in the agreement. The Commission was required to determine whether the agreement met the statutory criteria for approval under the Fair Work Act 2009. Key issues included whether the agreement facilitated genuine bargaining, was free from coercion, undue influence, and discrimination, and whether it complied with the safety net provisions.

The Commission examined the process by which the agreement was negotiated, assessing if it involved genuine bargaining between the parties. It also considered whether the agreement contained provisions that were contrary to public policy or that failed to meet the minimum entitlements set out in the safety net. The Ombudsman's opposition centred on specific clauses that he believed undermined the rights of employees or did not provide adequate protections. The Commission needed to balance the rights of employers to manage their business with the protection of employees' rights and entitlements.

After considering the submissions from both parties, the Commission found that the agreement substantially complied with the requirements of the Act. The Commission acknowledged some concerns raised by the Ombudsman but concluded that these did not outweigh the overall benefits of the agreement to the parties involved. The Commission approved the agreement subject to certain modifications to address specific issues, ensuring compliance with the statutory safety net and other legal requirements. The final orders included the approval of the agreement with specified amendments to certain clauses.

O-I Operations (Australia) Pty Ltd T/A O-I Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established