DECISION

Fair Work Act 2009
s.185—Enterprise agreement

M & I Samaras No 1 Pty Ltd & M & I Samaras No 2 Pty Ltd & M & I Samaras No 3 Pty Ltd T/A Samaras Structural Engineers
(AG2018/5210)

SAMARAS STRUCTURAL ENGINEERS WORKSHOP AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 22 FEBRUARY 2019

Application for approval of the Samaras Structural Engineers Workshop Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Samaras Structural Engineers Workshop Agreement 2018 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by M & I Samaras No 1 Pty Ltd & M & I Samaras No 2 Pty Ltd & M & I Samaras No 3 Pty Ltd T/A Samaras Structural Engineers. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 February 2019.

[3] On 11 February 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 12 February 2019. The undertaking deals with the following topics:

• The Applicant has inserted a National Employment Standards (NES) precedence clause.

• An employee engaged as an unapprenticed junior or adult apprentice will be entitled to rates of pay prescribed by the Award, plus $0.10 per hour.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The ““Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)”, 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) of the Act I note that the Agreement covers this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 1 March 2022.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, three companies operating as Samaras Structural Engineers, sought approval of the Samaras Structural Engineers Workshop Agreement 2018 from the Fair Work Commission. The dispute centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the definition of "employee" and the scope of "structural engineer". The matter was heard by the Fair Work Commission, which had to determine whether the agreement was an "individual flexible arrangement" under the Fair Work Act.

The primary legal issue was whether the definition of "structural engineer" in the agreement was consistent with the common law definition of the term. The applicants argued that the term should be interpreted broadly to include all employees of the companies involved, while the respondents contended that only those employees with specific qualifications and experience should be included. Additionally, the court had to consider whether the agreement complied with the requirements for individual flexible arrangements under the Fair Work Act.

The Fair Work Commission found that the definition of "structural engineer" in the agreement was consistent with the common law definition and that the agreement complied with the requirements for individual flexible arrangements. The court noted that the agreement provided for flexibility in the work arrangements of the employees, while also ensuring that they received appropriate protections under the Fair Work Act. The applicants successfully demonstrated that the agreement met the necessary requirements, and the Commission approved the agreement.

The Fair Work Commission approved the Samaras Structural Engineers Workshop Agreement 2018, finding that it met the requirements of the Fair Work Act and provided for appropriate protections for the employees. The court's decision confirms that agreements of this nature can be approved provided they comply with the relevant legislative requirements and provide for adequate protections for employees.

M & I Samaras No 1 Pty Ltd & M & I Samaras No 2 Pty Ltd & M & I Samaras No 3 Pty Ltd T/A Samaras Structural Engineers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established