ASP Ship Management Pty Ltd

[2020] FWCA 3791

[2020] FWCA 3791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

ASP Ship Management Pty Ltd
(AG2020/1718)

ASP SHIP MANAGEMENT GLADSTONE BUNKERING FACILITY AGREEMENT 2018

Maritime industry
COMMISSIONER BOOTH	BRISBANE, 20 JULY 2020

Application for approval of the ASP Ship Management Gladstone Bunkering Facility Agreement 2018.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by ASP Ship Management Pty Ltd (the Applicant) for approval of the ASP Ship Management Gladstone Bunkering Facility Agreement 2018 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 7 July 2020, raising a number of concerns in relation to the Agreement.

[3] The Applicant provided submissions and undertakings on 10 July 2020, addressing the concerns raised.

[4] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to his Decision as Attachment A.

[5] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

•  Clause 11.1(a) and 11.1(d) – notice of termination;

•  Clause 34.2 – leave;

•  Clause 36.2.4 – personal leave;

•  Clause 38.1 – parental leave; and

•  Clause 38.3 – maternity leave.

[6] However, noting the NES precedence clause inserted with the undertakings, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] It is also noted that the consultation term at clause 13 of the Agreement does not appear consistent with the requirements of the Act. Accordingly, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[8] The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b) of the Act, having considered the submissions of the Applicant in this matter, in all the circumstances, I consider it fair to extend the time for making the application to the date it was actually made.

[9] Subject to the undertakings provided and the matters raised at paragraphs [5]-[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.

[10] The Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) filed Form F18s in this matter, advising that it supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it. The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) also filed a Form F18, providing 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 AIMPE, AMOU and MUA.

[11] The Agreement is approved and, in accordance with clause 5 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2021.

COMMISSIONER

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Attachment A