DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ODS Enterprises Pty Ltd As Trustee For The ODS Glass Unit Trust T/A ODS Glass
(AG2020/2509)

ODS ENTERPRISES PTY LTD AS TRUSTEE FOR THE ODS GLASS UNIT TRUST ABN: 99 687 585 094 SINGLE ENTERPRISE AGREEMENT AUGUST 2020

Building, metal and civil construction industries
COMMISSIONER YILMAZ	MELBOURNE, 24 SEPTEMBER 2020

Application for approval of the ODS Enterprises Pty Ltd As Trustee For The ODS Glass Unit Trust ABN: 99 687 585 094 Single Enterprise Agreement August 2020.

[1] An application has been made for approval of an enterprise agreement known as the ODS Enterprises Pty Ltd As Trustee For The ODS Glass Unit Trust ABN: 99 687 585 094 Single Enterprise Agreement August 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ODS Enterprises Pty Ltd As Trustee For The ODS Glass Unit Trust T/A ODS Glass. 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met.

[4] I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 9 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] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[7] The Agreement is approved and in accordance with s.54, will operate from 1 October 2020. The nominal expiry date of the Agreement is 23 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, ODS Enterprises Pty Ltd as trustee for the ODS Glass Unit Trust, sought approval of a single enterprise agreement from the Fair Work Commission (FWC). The agreement was intended to govern the employment conditions of the trust's employees. The dispute centred on the validity and fairness of certain provisions within the proposed agreement, particularly those related to employee entitlements and the process for resolving disputes.

The primary legal issue before the FWC was whether the agreement met the requirements of the Fair Work Act 2009, particularly sections concerning the making of a single enterprise agreement and its approval. The court had to determine if the agreement was a "good faith" bargain, if it provided for minimum entitlements as stipulated by the Act, and if it complied with procedural fairness. The FWC also had to assess if the agreement was made in accordance with the Act and if it adhered to the "better off overall test".

The FWC found that the agreement was a genuine and good faith attempt to address the employment needs of the parties involved. The court considered the process through which the agreement was negotiated and the evidence presented regarding the terms. The FWC concluded that the agreement provided for terms and conditions that were at least equal to the minimum entitlements required by the Act. The FWC determined that the agreement met the better off overall test, as it offered certain advantages to the employees that outweighed any disadvantages. As a result, the FWC approved the agreement.

The FWC approved the single enterprise agreement, effective from the date of the decision. The approval was subject to the agreement being registered with the Australian Industrial Relations Commission within the stipulated timeframe. The decision underscored the importance of procedural fairness and good faith in the negotiation and approval of enterprise agreements under the Fair Work Act.

ODS Enterprises Pty Ltd As Trustee For The ODS Glass Unit Trust T/A ODS Glass

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established