Australian Bulk Stevedoring Pty Ltd

[2013] FWCA 163

FAIR WORK COMMISSION

DECISION

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

Australian Bulk Stevedoring Pty Ltd
(AG2012/12921)

AUSTRALIAN BULK STEVEDORING ENTERPRISE AGREEMENT 2012

Stevedoring industry
COMMISSIONER CLOGHAN	PERTH, 9 JANUARY 2013

Application for approval of the Australian Bulk Stevedoring Enterprise Agreement 2012.

[1] On 10 December 2012, Australian Bulk Stevedoring Pty Ltd made application for approval of a single enterprise agreement to be known as the Australian Bulk Stevedoring Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 2 November 2012.

[3] Having received an explanation from the Applicant, I am satisfied that, in the circumstances, it is fair to extend the period for filing the application to 10 December 2012.

[4] 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, s.187 and s.188 are met.

[5] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[6] The Maritime Union of Australia (MUA) has declared that the MUA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the MUA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the MUA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[7] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 16 January 2013.

[8] The nominal expiry date of this Agreement is 30 November 2015.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of Australian Bulk Stevedoring Pty Ltd, the Fair Work Commission was tasked with determining whether the Australian Bulk Stevedoring Enterprise Agreement 2012 should be approved. The applicant, Australian Bulk Stevedoring, sought approval for the agreement which had been negotiated between the company and the Maritime Union of Australia. The dispute centred on whether the terms of the agreement met the criteria set out under the Fair Work Act 2009, particularly in relation to the agreement's coverage, fairness, and compliance with the 'better off overall test'. The commission was required to assess if the proposed agreement would provide a fair and reasonable outcome for all employees covered by it.

The central legal issue was whether the proposed agreement satisfied the statutory requirements for approval, as outlined in the Fair Work Act. This involved examining whether the agreement met the coverage criteria, provided for fair terms and conditions, and ensured that employees would be no worse off financially than they would be under the applicable award. The commission also had to consider if the agreement was genuinely negotiated and if it met the 'better off overall test', which required that employees be at least as well off under the agreement as they would be under the relevant industrial instrument.

In delivering its decision, the Fair Work Commission found that the proposed agreement did meet the statutory requirements for approval. The commission considered the coverage of the agreement, which included all employees of the company, and confirmed that it was genuinely negotiated between the parties. Furthermore, the commission determined that the agreement provided fair and reasonable terms and conditions for employees. It was found that the agreement satisfied the 'better off overall test', as employees would be at least as well off under the agreement as they would be under the applicable award. Therefore, the commission approved the Australian Bulk Stevedoring Enterprise Agreement 2012.

The Fair Work Commission approved the Australian Bulk Stevedoring Enterprise Agreement 2012, subject to the conditions set out in the decision. The approval is effective from the date of the decision and applies to all employees covered by the agreement. This decision ensures that the terms and conditions of employment for the employees are governed by the agreed-upon terms, providing a fair and reasonable outcome for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established