BR&I Pty Ltd T/A BR&I

[2021] FWCA 6310

[2021] FWCA 6310

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BR&I Pty Ltd T/A BR&I
(AG2021/7045)

BR & I PTY LTD ENTERPRISE AGREEMENT 2021

Oil and gas industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 15 OCTOBER 2021

Application for approval of the BR & I Pty Ltd Enterprise Agreement 2021

[1] BR & I Pty Ltd T/A BR&I applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the BR & I Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Employer in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 18.5 – Rostering;

•  Clause 32.5 – Annual Leave; and

•  Clause 33.3 – Personal/Carer’s Leave.

[5] I note clause 6 of the Agreement provides that notwithstanding anything in the Agreement, no employee covered by the Agreement will be disadvantaged against the terms of the NES. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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 s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 22 October 2021. The nominal expiry date of the Agreement is 15 October 2021.

DEPUTY PRESIDENT

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Annexure A