ASP Ship Management Pty Ltd

[2023] FWCA 777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

ASP Ship Management Pty Ltd

(AG2023/442)

The ASP Ship Management Pty Ltd Seagoing Ratings (RV Investigator) Enterprise Agreement 2021

Maritime industry
COMMISSIONER LEE	MELBOURNE, 10 MARCH 2023

Application for approval of The ASP Ship Management Pty Ltd Seagoing Ratings (RV Investigator) Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as The ASP Ship Management Pty Ltd Seagoing Ratings (RV Investigator) Enterprise Agreement 2021 (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.

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.

The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 43.1.1(b) – Notice – permanent employees.
· Clause 43.1.1(e)(iii) – Notice – permanent employees.

However, noting clause 6.8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 March 2023. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by ASP Ship Management Pty Ltd for the approval of the Seagoing Ratings (RV Investigator) Enterprise Agreement 2021. The Fair Work Commission, the relevant tribunal, was tasked with determining whether the agreement met the statutory criteria for approval. The dispute centred on various provisions within the agreement, including those related to wages, conditions of employment, and the process for resolving disputes. The Fair Work Commission had to consider whether these provisions were consistent with the objectives of the Fair Work Act 2009, including ensuring fair and efficient industrial relations.

The primary legal issues before the Commission involved assessing whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This included examining whether the agreement was made in good faith and whether it provided for a fair and efficient system for resolving workplace disputes. Additionally, the Commission had to determine whether the agreement adequately addressed the needs and interests of the employees it covered. The Commission also considered whether any provisions of the agreement unfairly disadvantaged employees or imposed unreasonable conditions.

In its decision, the Fair Work Commission found that the Seagoing Ratings (RV Investigator) Enterprise Agreement 2021 generally met the statutory requirements for approval. The Commission concluded that the agreement was made in good faith and provided for a fair and efficient system for resolving workplace disputes. While acknowledging some concerns regarding specific provisions, the Commission determined that these issues did not outweigh the overall benefits of the agreement to the employees. The Commission approved the agreement, subject to certain conditions and modifications to address the identified concerns. The final orders included the approval of the agreement, with the specified modifications to be implemented by the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established