BR & I Pty Ltd t/a BR & I

[2021] FWCA 5261

[2021] FWCA 5261

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

BR & I Pty Ltd t/a BR & I
(AG2021/6243)

BR & I BP KWINANA MAINTENANCE ENTERPRISE AGREEMENT 2021

Oil and gas industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 26 AUGUST 2021

Application for approval of the BR & I BP Kwinana Maintenance Enterprise Agreement 2021.

[1] BR & I Pty Ltd has applied for approval of a single enterprise agreement known as the BR & I BP Kwinana Maintenance Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met, whether the Agreement contravenes s.55 of the Act, whether the Agreement contains the mandatory terms and whether the Agreement passes the better off overall test. Further information was provided in relation to these concerns.

[3] BR & I Pty Ltd sought to correct or amend two errors in the original application, by filing a complete statutory declaration and a copy of the Notice of Employee Representational Rights. In the circumstances, I am satisfied that these corrections or amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. The Applicant provided further evidence to satisfy the Commission that:

a) all employees, who were employed at the relevant time(s) 1 and covered by the Agreement, were requested to vote; and
b) of the employees who were requested to vote, a small proportion of casual employees were rostered to but did not work a shift in the relevant period, however even if this group had each cast a vote (which is not known) it would have been immaterial to the outcome.

[5] I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission. 2

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

[7] Noting clause 3 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[8] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representatives did not oppose the Undertaking. 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) of the Act, the Undertaking is taken to be a term of the Agreement.

[9] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, 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.

[10] 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. In accordance with s.201(2), I note that the Agreement covers this organisation.

[11] The Agreement was approved on 26 August 2021 and, in accordance with s.54, will operate from 2 September 2021. The nominal expiry date of the Agreement is 26 August 2025.

[12] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 3

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE512865  PR733176>

 1   Appeal by SDA and others [2019] FWCFB 7891.

 2   National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

 3   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

Annexure A