SMP Engineering Pty Ltd

[2021] FWCA 5321

[2021] FWCA 5321

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

SMP Engineering Pty Ltd
(AG2021/6568)

SMP ENGINEERING ENTERPRISE AGREEMENT 2021

Building, metal and civil construction industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 31 AUGUST 2021

Application for approval of the SMP Engineering Enterprise Agreement 2021.

[1] SMP Engineering Pty Ltd has applied for approval of a single enterprise agreement known as the SMP Engineering 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, 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] 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, one casual did not work a shift in the relevant period, however even if the employee had cast a vote (which is not known) it would have been immaterial to the outcome.

[4] 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

[5] Noting clause 4.3 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.

[6] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (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.

[7] As there were no bargaining representatives appointed to represent the employees to be covered by the Agreement the Commission took steps to ensure the relevant employees were served with, and has received evidence that, the employees were informed of: the application; the Commission’s concerns; the Applicant’s responses to those concerns; and were invited to express their views (including about the Undertakings) and none opposed.

[8] On the basis of the material contained in the 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 Agreement was approved on 31 August 2021 and, in accordance with s.54, will operate from 7 September 2021. The nominal expiry date of the Agreement is 31 August 2025.

[10] 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

<AE512895  PR733259>

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