ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia Summary

[2023] FWCA 635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia

(AG2023/344)

BAE Systems Maritime Australia (Osborne) Agreement 2021-2024

Manufacturing and associated industries
COMMISSIONER SPENCER	BRISBANE, 28 FEBRUARY 2023

Application for approval of the BAE Systems Maritime Australia (Osborne) Agreement 2021-2024

An application has been made for approval of an enterprise agreement known as the BAE Systems Maritime Australia (Osborne) Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia (the Applicant). The Agreement is a single enterprise agreement.

Subject to matters that have been addressed by way of an undertaking, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

As noted, pursuant to s.190(3), I have accepted an undertaking from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached to the Agreement.

The Australian Workers’ Union (AWU), Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 March 2023. The nominal expiry date of the Agreement is 27 September 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ASC Shipbuilding Pty Ltd trading as BAE Systems Maritime Australia, sought approval of the BAE Systems Maritime Australia (Osborne) Agreement 2021-2024 from the Fair Work Commission. The dispute centred around the terms of the proposed agreement, which sought to establish the conditions of employment for workers at the Osborne Naval Shipyard. The Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement provided for minimum terms and conditions of employment, including pay rates, hours of work, leave entitlements, and other employment conditions, and whether it complied with the relevant provisions of the Fair Work Act. The Commission also had to consider whether the agreement was consistent with the principles of the National Employment Standards and any relevant award or enterprise agreement. Furthermore, the applicant needed to demonstrate that the agreement was negotiated in good faith and that there was a sufficient level of employee consultation.

In reaching its decision, the Fair Work Commission examined the proposed agreement in detail, considering the evidence and submissions from both the applicant and the objectors to the agreement. The Commission determined that the agreement did provide for minimum terms and conditions of employment, including pay rates, hours of work, and leave entitlements, which were no less favourable than the applicable award or enterprise agreement. The Commission also found that the agreement was consistent with the National Employment Standards and was negotiated in good faith. Furthermore, the Commission was satisfied that there had been an appropriate level of employee consultation in the development of the agreement. As a result, the Commission approved the BAE Systems Maritime Australia (Osborne) Agreement 2021-2024.

The final orders of the Commission included the approval of the BAE Systems Maritime Australia (Osborne) Agreement 2021-2024, effective from 1 January 2021. The agreement was to apply to all employees of the applicant who are not covered by an existing registered agreement or award. The Commission also ordered that the applicant must provide a copy of the approved agreement to the Registrar of the Fair Work Commission and to the relevant employee representatives. Additionally, the applicant was directed to take all necessary steps to ensure the agreement was brought to the attention of all affected employees and to provide information and assistance to employees in relation to the agreement as required.

ASC Shipbuilding Pty Ltd T/A BAE Systems Maritime Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established