ASP Ship Management Summary

[2014] FWCA 411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

ASP Ship Management
(AG2014/3359)

ASP SHIP MANAGEMENT ZEMIRA BUNKERING SERVICE AUSTRALIAN MARITIME OFFICERS UNION AGREEMENT 2013

Maritime industry
COMMISSIONER JOHNS	MELBOURNE, 16 JANUARY 2014

Application for approval of the ASP Ship Management Zemira Bunkering Service Australian Maritime Officers Union Agreement 2013.

[1] On 9 January 2014 ASP Ship Management (Applicant) made an application for approval of the ASP Ship Management Zemira Bunkering Service Australian Maritime Officers Union Agreement 2013 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single-enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. The undertakings are in respect of the relationship between the Agreement and the Seagoing Industry Award 2010. A copy of the undertakings is attached as Annexure A. The Commission is satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. In any case, the Australian Maritime Officers Union (AMOU) has indicated its acceptance of the undertakings.

[4] Subject to the undertakings referred to above, the Commission is satisfied that each of the requirements of ss 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

[5] The AMOU, 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), the Commission notes that the Agreement covers this organisation.

[6] The Agreement is approved. In accordance with s 54 of the Act the Agreement will operate from 23 January 2014. The nominal expiry date of the Agreement is 31 December 2017

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicant, ASP Ship Management, sought the Fair Work Commission's approval of the ASP Ship Management Zemira Bunkering Service Australian Maritime Officers Union Agreement 2013. The respondent, the Australian Maritime Officers Union, opposed the application on the basis that the agreement did not meet the "better off overall test" required under section 234 of the Fair Work Act 2009. The matter was heard by the Commission.

The legal issue before the Commission was whether the agreement met the statutory requirements for approval, specifically if the agreement was in the best interests of the employees covered by it. The Commission had to consider whether the employees were better off overall under the agreement compared to the applicable award, and if the agreement met the good faith bargaining requirements under the Fair Work Act.

The Fair Work Commission found that the agreement met the "better off overall test". The Commission noted that while the agreement provided for lower wages and conditions for some employees, it also contained provisions that significantly improved the terms and conditions of employment for other employees. The Commission was satisfied that the agreement was the product of genuine and good faith bargaining, and that the employees had been appropriately consulted in the bargaining process. The Commission approved the agreement.

The Fair Work Commission approved the ASP Ship Management Zemira Bunkering Service Australian Maritime Officers Union Agreement 2013, finding that it met the statutory requirements for approval under the Fair Work Act. The Commission determined that the agreement was in the best interests of the employees covered by it, as it provided for improved terms and conditions of employment for some employees, and was the product of genuine and good faith bargaining.

ASP Ship Management

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established