DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M & I SAMARAS (No 1) Pty Ltd & M & I SAMARAS (No 2) & M & I SAMARAS (No 3) Pty Ltd T/A Samaras Structural Engineers; Construction, Forestry, Maritime, Mining and Energy Union
(AG2021/5936)

SAMARAS STRUCTURAL ENGINEERS & CFMMEU ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT EASTON	SYDNEY, 19 JULY 2021

Application for approval of the Samaras Structural Engineers & CFMMEU Enterprise Agreement 2021.

[1] M & I SAMARAS (No 1) Pty Ltd & M & I SAMARAS (No 2) & M & I SAMARAS (No 3) Pty Ltd T/A Samaras Structural Engineers (the Employer) has made an application for the approval of the Samaras Structural Engineers & CFMMEU Enterprise Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] I note that Clause 5.8.13 – Shiftworker definition is potentially inconsistent with the National Employment Standards (NES).

[5] Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) was a bargaining representative for the Agreement and 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 CFMMEU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 July 2021. The nominal expiry date of the Agreement is 7 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Samaras Structural Engineers to have their Enterprise Agreement 2021 approved. The agreement aimed to regulate the terms and conditions of employment for certain employees engaged by Samaras Structural Engineers. The union and the employer jointly submitted the application, seeking the Commission’s approval of the agreement under the Fair Work Act 2009. The union argued that the agreement fairly reflected the bargaining outcomes, while Samaras Structural Engineers contended that the agreement should be approved as it represented a fair and reasonable outcome of the bargaining process.

The primary legal issue before the Commission was whether the Enterprise Agreement 2021 met the requirements of section 231 of the Fair Work Act, particularly the ‘better off overall test’. This test requires that employees covered by the agreement be no worse off financially and, where possible, be better off overall than they would be under the applicable award. The Commission had to consider if the agreement provided for terms and conditions that were fair and reasonable in all respects and whether it adhered to the requirements for approval as stipulated by the Act.

In assessing the application, the Commission carefully examined the provisions of the agreement, the bargaining process, and the evidence presented by both parties. The Commission noted the extensive negotiations between the union and the employer, which resulted in the agreement. The Commission determined that the agreement met the better off overall test and contained provisions that were fair and reasonable. The Commission found that the agreement provided for terms and conditions that were no less favourable than those provided by the relevant awards and that it appropriately balanced the interests of both the union and the employer. Consequently, the Commission approved the Enterprise Agreement 2021, ensuring that the agreement would be binding on the parties from the specified commencement date.

The Commission’s decision was based on the evidence that the agreement was the product of genuine bargaining and that it provided for fair and reasonable terms and conditions of employment. The Commission approved the agreement, ensuring that the terms and conditions would govern the employment relationship between the union and Samaras Structural Engineers. This approval signified that the agreement was a fair and reasonable outcome of the bargaining process and complied with the requirements of the Fair Work Act.

M & I Samaras (No 1) Pty Ltd & M & I Samaras (No 2) & M & I Samaras (No 3) Pty Ltd T/A Samaras Structural Engineers; Construction, Forestry, Maritime, Mining and Energy Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established