Ausbarge Marine Services Pty Ltd

[2014] FWCA 8597

[2014] FWCA 8597

FAIR WORK COMMISSION

DECISION

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

Ausbarge Marine Services Pty Ltd
(AG2014/7555)

AUSBARGE MARINE SERVICES PTY LTD ENTERPRISE AGREEMENT 2013

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 1 DECEMBER 2014

Application for approval of the Ausbarge Marine Services Pty Ltd Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Ausbarge Marine Services Pty Ltd Enterprise Agreement 2013(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Ausbarge Marine Services Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 17 September 2014 by the Employer’s representative, the Workplace Advisory Group (WAG). The application included a Statutory Declaration of Greg Hall made on behalf of the Employer and dated 17 September 2014 (the Declaration). The Declaration stated that the Agreement was made on 1 September 2014. Therefore the application was not made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act. However, in the circumstances where the application was made two days after the 14 day period, and, subsequently, an explanation for the late lodgement has been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] The application for approval was listed for Hearing on 21 October 2014 at which time Mr M Diamond from the WAGappeared for the Employer. During the proceeding held on 21 October, the Fair Work Commission (the Commission) identified various issues relating to the contents of the application documentation and to certain terms contained in the Agreement which required clarification.

[4] Mr Diamond provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 25 November 2014, from the WAG, which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 2.1 and a consultation term at clause 2.2.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 8 December 2014. In accordance with clause 1.5 of the Agreement the nominal expiry date of the Agreement is 1 December 2018.

COMMISSIONER

Undertakings:

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