Good Samaritan Industries t/a Good Sammy Enterprises

[2020] FWCA 1803

[2020] FWCA 1803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Good Samaritan Industries t/a Good Sammy Enterprises
(AG2019/5163)

GOOD SAMARITAN INDUSTRIES ENTERPRISE AGREEMENT 2019

Social, community, home care and disability services
DEPUTY PRESIDENT MANSINI	MELBOURNE, 3 APRIL 2020

Application for approval of the Good Samaritan Industries Enterprise Agreement 2019.

[1] Good Sammy Enterprises has applied for approval of a single enterprise agreement known as the Good Samaritan Industries Enterprise Agreement 2019 (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 the form of the application and whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act and passes the better off overall test. Further information was provided in relation to these concerns.

[3] Good Sammy Enterprises applied to correct a typographical error in the original application. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The Notice of Employee Representational Rights (Notice) issued at the commencement of bargaining was not strictly compliant with the requirements of s.174 because it was in a form that had been superseded at the statutory notification time. The Notice was otherwise compliant in all respects. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error.

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[6] Noting clause 6.1 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.

[7] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives supported the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[8] On the basis of the material contained in the application, amended application, further information provided on request of the Commission and the Undertakings, 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.

[9] The Transport Workers’ Union of Australia, the United Workers’ Union and the Health Services Union of Australia, being bargaining representatives for the Agreement, have respectively given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers these organisations.

[10] The Agreement was approved on 3 April 2020 and, in accordance with s.54, will operate from 10 April 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Annexure A

 1   [2019] FWCFB 318.

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