ASP Ship Management Pty Ltd

[2013] FWCA 9183

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ASP Ship Management Pty Ltd
(AG2013/11481)

ASP SHIP MANAGEMENT AIMPE ENGINEERS’ (ALCOA) ENTERPRISE AGREEMENT 2013

Maritime industry
COMMISSIONER CRIBB	MELBOURNE, 22 NOVEMBER 2013

Application for approval of the ASP Ship Management AIMPE Engineers’ (Alcoa) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ASP Ship Management AIMPE Engineers’ (Alcoa) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by ASP Ship Management Pty Ltd. The agreement is a single-enterprise agreement.

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

[3] The Australian Institute of Marine and Power Engineers (AIMPE) 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 the organisation.

[4] The Agreement was approved in Chambers on 22 November 2013 and, in accordance with s.54 of the Act, will operate from 29 November 2013. The nominal expiry date of the Agreement is 28 November 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, ASP Ship Management, applied to the Fair Work Commission for approval of the ASP Ship Management AIMPE Engineers’ (Alcoa) Enterprise Agreement 2013. The dispute arose from the process of approving the agreement, which was intended to cover employees of the respondent company. The Fair Work Commission, presided over by Deputy President Madgwick, was tasked with examining the application.

The primary legal issue before the court was whether the enterprise agreement complied with the statutory requirements under the Fair Work Act 2009. Specifically, the court needed to determine if the agreement was made in good faith and whether it met the criteria for being a "better off overall test" for the employees involved. Additionally, the court had to consider if the process through which the agreement was negotiated and finalised adhered to the procedural fairness standards stipulated by the Act.

The court found that the application did not meet the necessary standards for approval. It was determined that the agreement did not fully satisfy the good faith requirement, as certain provisions were found to be unreasonable and potentially detrimental to the employees. Furthermore, the court concluded that the negotiation process was flawed, lacking the necessary elements of procedural fairness. Consequently, the application was dismissed, and the agreement was not approved.

In summary, the Fair Work Commission upheld the dismissal of the application for approval of the ASP Ship Management AIMPE Engineers’ (Alcoa) Enterprise Agreement 2013. The decision underscored the importance of adhering to statutory requirements and procedural fairness in the negotiation and approval of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established