Ausbarge Marine Services Pty Ltd Summary

[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:

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Ausbarge Marine Services Pty Ltd Enterprise Agreement 2013. The applicants were Ausbarge Marine Services Pty Ltd, while the respondents included Maritime Officers' Union of Australia and others. The primary dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issues that the court needed to address were whether the agreement provided for the terms and conditions of employment that complied with the provisions of the Fair Work Act. This included verifying that the agreement covered all mandatory topics, was free from prohibited content, and met the requirements for employee and employer representation. Additionally, the court had to consider whether the agreement was made in good faith and whether the necessary procedural fairness was observed during its creation.

In delivering its decision, the court examined the content of the agreement and found it to be comprehensive in addressing all mandatory topics as required by the Act. The court noted that the agreement included provisions on wages, hours of work, leave, and other standard employment terms, thereby satisfying the mandatory topics requirement. Regarding the absence of prohibited content, the court confirmed that the agreement did not contain any terms that would be contrary to public policy or the spirit of the Act. The court also found that the agreement was made in good faith, considering the evidence of genuine negotiations between the parties. The procedural fairness was upheld as the agreement was made following the prescribed processes, including the provision of necessary information and opportunities for consultation.

The court approved the Ausbarge Marine Services Pty Ltd Enterprise Agreement 2013, finding it to be in compliance with the statutory requirements. The agreement was thus formally approved, effective from the date of the decision.

Ausbarge Marine Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established