Viridian Glass Pty Ltd

[2025] FWCA 2728

[2025] FWCA 2728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viridian Glass Pty Ltd

(AG2025/2286)

VIRIDIAN GLASS PTY LTD INGLEBURN ENTERPRISE AGREEMENT 2025

Building, metal and civil construction industries
DEPUTY PRESIDENT BELL	MELBOURNE, 18 AUGUST 2025

Application for approval of the Viridian Glass Pty Ltd Ingleburn Enterprise Agreement 2025.

1. An application has been made for approval of an enterprise agreement known as the Viridian Glass Pty Ltd Ingleburn Enterprise Agreement 2025 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Viridian Glass Pty Ltd. The Agreement is a single enterprise agreement.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) was a bargaining representative for some employees during bargaining. The CFMEU filed a Form F18 declaration, in which it raised a number of objections concerning its view that the Agreement did not pass the ‘bettor off overall test’ or ‘BOOT’. Those matters included lower penalty shift rates and meal break rates under the Agreement compared to the relevant award, and the absence of various allowances otherwise payable under the relevant award. The omitted allowances were stated as included (but were not limited to) the leading hand allowances, the tool allowance for glass workers, and the toxic substances allowance.

1. For base rates of pay, the Agreement generally provides between about 19 percent and to 37 percent above award rates. However, as raised by the CFMEU, there are some items below the award rates. Analysis by the Commission’s agreements team identified some similar issues to the CFMEU. They included:

   ·   For level 1 and 2 employees, the lower shift penalties identified by the CFMEU may not have been compensated by higher base rates of pay. For employees at level 3 or higher, the agreements team analysis concluded rates of pay were otherwise high enough to compensation for the different shift penalties.

   ·   Lower shiftworker overtime rates. The Commission’s agreements team analysis indicated that rates of pay may not be high enough to compensate where casual and part-time employees regularly perform a significant amount of overtime for which they receive 150% under the Agreement, where under the Award they would receive 200%.

·   A number of allowances exist under the award but are not provided for in the Agreement. The agreements team analysis concluded that the absence of first aid allowances and meal allowances (including while away from home) were sufficiently compensated for having regard to the higher rates under the Agreement but if an employee was entitled to several of the remaining allowances, there might be a BOOT concern.

1. The employer had also advised that the wage rates table set out at clause 17.1 of the Agreement filed with the Commission contained incorrect wage rates in Column 3 (Minimum Hourly Wage FFPP 1 July 2026) through to Column 6 (Minimum Weekly Wage FFPP 1 July 2027).

1. I wrote to the parties about the above matters. The response from the employer was to the effect that:

   ·   For the shift penalty issue, the employer provided calculations demonstrating that employees on level 1 and 2 would be better off overall based on the Agreement rates. I am satisfied by the explanation provided by the employer. There was no contrary position taken to these calculations.

   ·   For the shift worker overtime issue, the employer indicated that:

   ·  The Viridian Ingleburn site has not employed Casuals or Part-time employees the last five years. Further, based on the wage rates, overtime is calculated on the higher base rate under the Agreement, as opposed to the award.

   ·  The employer’s calculations suggest an employee would need to work a minimum of 4 shifts with no more than 2 hours overtime each week for an unfavourable weekly pay, which the employer stated “presents an extremely unlikely scenario”.

   ·   For the allowances issue, the employer stated:

   ·  The Viridian Ingleburn site is one factory of 14 across the country. None of its sites have ever had the need to deal with toxic substances.

   ·  The employer’s glass workers do not require use of their own tools.

   ·  The Leading Hand Allowance is not required as those roles are incorporated into the Level 7 Team Leader level. The employer does not engage workers other than Level 7 to act as a Team Leader or Leading Hand.

   ·  The lack of the relevant award allowance is easily catered for by the higher wage rates.

1. I am satisfied for the purpose of s.193A(6), and determine under s.193A(6A), of the Act, that overtime by casuals or part-time employees are not a type of employment that is reasonably foreseeable as that is relevant for the better off overall test. I am similarly satisfied that it is not reasonably foreseeable for employees to perform work requiring a payment of glass tools or toxic substance allowance, and that the only persons who might be engaged to perform as a leading hand are Level 7 employees. There was no other allowance drawn to my attention as being potentially applicable, other than first aid allowances and meal allowances that have been addressed above.

1. The employer has provided a written undertaking dealing with the incorrect wage rates. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3), the undertaking is taken to be a term of the Agreement.

1. Subject to the undertaking referred to above, 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. The Agreement does not cover all of the employees of the employer. However, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. The CFMEU, 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.

1. The Agreement was approved on 18 August 2025 and, in accordance with s.54 of the Act, will operate from 25 August 2025. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A