Australian Institute of Marine and Power Engineers v Smit Lamnalco Towage Australia Pty Ltd T/A Smit Lamnalco Towage Australia

[2023] FWC 1962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.739—Dispute resolution

Australian Institute of Marine and Power Engineers
v

Smit Lamnalco Towage Australia Pty Ltd T/A Smit Lamnalco Towage Australia

(C2022/6471)

VICE PRESIDENT ASBURY

BRISBANE, 7 AUGUST 2023

Alleged dispute about any matters arising under the enterprise agreement and the NES; [s186(6)]

This Decision concerns an application made by the Australian Institute of Marine and Power Engineers (AIMPE) pursuant to s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a dispute under the dispute resolution procedures in the Smit Lamnalco Towage (Australia) Pty Ltd and the AIMPE Gladstone Enterprise Agreement 2022 (the Agreement). The Respondent is Smit Lamnalco Towage Australia Pty Ltd T/A Smit Lamnalco Towage Australia (the Company), the employer covered by the Agreement.

The agreed question for determination and my answer to the question are as follows:

Question:
On a proper construction of the Smit Lamnalco Towage (Australia) Pty Ltd and the AIMPE Gladstone Enterprise Agreement 2022, what are the entitlements under clause 22.2 and Appendix 2 for Engineers revalidating their Certificates of Safety Training?
Answer:
The entitlements of employees under the Smit Lamnalco Towage (Australia) Pty Ltd and the AIMPE Gladstone Enterprise Agreement 2022 for revalidating their Certificates of Safety Training are:
1.The Company is required to bear the expense of maintaining Engineers’ current Certificates of Safety Training and to backpay outstanding claims to employees.

2.The Company is required to pay out training days on an employee’s return to work after completion of training related to revalidating a Certificate of Safety Training, as per clause 22 of the Smit Lamnalco Towage (Australia) Pty Ltd and the AIMPE Gladstone Enterprise Agreement 2022.

Reasons for this Decision will issue separately.

VICE PRESIDENT

Final written submissions:

The Applicant, 14 February 2023.
The Respondent, 17 February 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Institute of Marine and Power Engineers (AIMPE) made an application to the Fair Work Commission under section 739 of the Fair Work Act 2009 for resolution of a dispute arising under the enterprise agreement between Smit Lamnalco Towage Australia Pty Ltd (the Company) and the AIMPE. This case pertains to the interpretation and application of certain clauses within the Smit Lamnalco Towage (Australia) Pty Ltd and the AIMPE Gladstone Enterprise Agreement 2022, specifically concerning the entitlements of Engineers who are required to revalidate their Certificates of Safety Training. The central issue was whether the Company was obligated to cover the expenses associated with maintaining the Engineers' Certificates of Safety Training and to backpay any outstanding claims to employees. Additionally, the dispute addressed whether the Company must compensate employees for training days missed upon their return to work following the completion of such training.

The Vice President of the Fair Work Commission, Asbury, was tasked with determining the entitlements of Engineers under clause 22.2 and Appendix 2 of the enterprise agreement for the revalidation of their Certificates of Safety Training. The Vice President found that the Company must bear the expense of maintaining the Engineers' current Certificates of Safety Training and provide backpay for any outstanding claims to employees. Furthermore, the Company was required to compensate employees for training days taken on their return to work after completing training related to revalidating a Certificate of Safety Training, in accordance with clause 22 of the agreement. The Vice President provided detailed reasons for this decision in a separate document.

Following the Vice President's determination, the final orders were issued, mandating the Company to adhere to the outlined obligations concerning the maintenance and revalidation of Engineers' Certificates of Safety Training. The Company was directed to cover the associated expenses and to backpay any outstanding claims to employees. Additionally, the Company was required to compensate employees for training days missed upon their return to work after completing the necessary training.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established