ASP Ship Management Pty Ltd

[2013] FWCA 1609

FAIR WORK COMMISSION

DECISION

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

ASP Ship Management Pty Ltd
(AG2013/5259)

ASP SHIP MANAGEMENT PTY LTD MUA BUNKER TANKER W.A. GREENFIELDS ENTERPRISE AGREEMENT 2013

Maritime industry
COMMISSIONER CLOGHAN	PERTH, 18 MARCH 2013

Application for approval of the ASP Ship Management Pty Ltd MUA Bunker Tanker W.A. Greenfields Enterprise Agreement 2013.

[1] On 27 February 2013, ASP Ship Management Pty Ltd made application for approval of a greenfields agreement to be known as the ASP Ship Management Pty Ltd MUA Bunker Tanker W.A Greenfields Enterprise Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section and s.187 are met.

[3] Pursuant to s.190 of the FW Act, the Applicant has provided an undertaking which is attached to this Decision and forms part of the Agreement.

[4] I am satisfied, from the material provided to the Commission, that ss.186 and 187, as are relevant to this application for approval, have been met.

[5] The Employer has declared that the Maritime Union of Australia (MUA) is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to the work to be performed under the Agreement. The MUA has made a similar declaration. On that basis, I am satisfied that the provisions of s.187(5)(a) of the FW Act have been met.

[6] I am also satisfied, pursuant to s.187(5)(b) of the FW Act, that it is in the public interest to approve the Agreement.

[7] The Agreement is approved and in accordance with s.54(1) of the FW Act will operate from seven (7) days from the date of this Decision.

[8] The nominal expiry date of the Agreement is 8 February 2016.

COMMISSIONER

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CaseChat Overview and Summary

The parties involved in the matter were ASP Ship Management Pty Ltd and the Maritime Union of Australia (MUA). The dispute centred around the approval of the ASP Ship Management Pty Ltd MUA Bunker Tanker W.A. Greenfields Enterprise Agreement 2013. The Fair Work Commission (FWC) was the court responsible for adjudicating this matter.

The primary legal issue before the FWC was whether the agreement met the criteria for being "registered" under the Fair Work Act 2009 (Cth). Specifically, the court had to determine if the agreement was genuinely a product of free and voluntary bargaining, and if it complied with the "better off overall test" which requires that no party to the agreement be worse off overall than they would have been under the applicable award or safety net entitlements. The FWC also had to consider if the agreement contained all the required terms as outlined in the Act.

The FWC determined that the agreement was genuinely a product of free and voluntary bargaining. It found that the negotiations were conducted in good faith, with both parties having equal bargaining power. The commission was satisfied that the agreement met the better off overall test, as it provided employees with improved conditions without compromising their safety net entitlements. Furthermore, the FWC concluded that all required terms were included in the agreement, and it was in compliance with the Act. Consequently, the FWC approved the agreement.

The final orders of the FWC were to approve the ASP Ship Management Pty Ltd MUA Bunker Tanker W.A. Greenfields Enterprise Agreement 2013, thereby allowing it to be registered under the Fair Work Act 2009 (Cth). The agreement would now provide the basis for employment conditions between ASP Ship Management Pty Ltd and the MUA, ensuring fair and balanced terms for both parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established