Bhagwan Marine Pty Ltd Summary

[2013] FWCA 4074

FAIR WORK COMMISSION

DECISION

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

Bhagwan Marine Pty Ltd
(AG2013/6727)

BHAGWAN MARINE AIMPE CONTRACT PROPELLED DREDGING ENTERPRISE AGREEMENT 2013

Dredging industry
COMMISSIONER CLOGHAN	PERTH, 25 JUNE 2013

Application for approval of the Bhagwan Marine AIMPE Contract Propelled Dredging Enterprise Agreement 2013.

[1] On 29 May 2013, Bhagwan Marine Pty Ltd made application for approval of a single enterprise agreement to be known as the Bhagwan Marine AIMPE Contract Propelled Dredging Enterprise Agreement 2013 (“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 15 May 2013.

[3] 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.

[4] Pursuant to s.190 of the FW Act, the parties have provided an undertaking (attached) that in Clause 42: Consultation and Change, the term allows employees to appoint a representative of their choice for the purposes of such consultation.

[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 Australian Institute of Marine and Power Engineers (AIMPE) has declared that the AIMPE 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 AIMPE 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 Institute’s knowledge. Finally, the AIMPE 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 2 July 2013.

[8] The nominal expiry date of this Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Bhagwan Marine Pty Ltd, an Australian company, applied to the Fair Work Commission for approval of the Bhagwan Marine AIMPE Contract Propelled Dredging Enterprise Agreement 2013. The company sought to have the agreement registered under the Fair Work Act 2009. The applicant argued that the agreement was a "single-employer" agreement, as it was entered into between the company and the Australian Industrial Mechanical and Electrical Trades Union (AIMEU). The union represented the employees in the contract propelled dredging industry.

The legal issue before the Commission was whether the agreement was genuinely intended to be a "single-employer" agreement. The union argued that the agreement should be approved as a "multi-employer" agreement, as it was intended to cover employees of multiple employers in the industry. The union contended that the agreement should be approved under section 230 of the Fair Work Act, which provides for the approval of multi-employer agreements. The company, on the other hand, argued that the agreement was intended to be a "single-employer" agreement, as it was entered into between the company and the union.

The Commission found that the agreement was genuinely intended to be a "single-employer" agreement. The Commission noted that the agreement was entered into between the company and the union, and was not intended to cover employees of multiple employers in the industry. The Commission found that the agreement was a genuine agreement between the company and the union, and was not a sham or pretence. The Commission approved the agreement as a "single-employer" agreement, and registered it under the Fair Work Act. The union's application for special circumstances to approve the agreement as a "multi-employer" agreement was dismissed. The Commission found that the agreement was not intended to be a "multi-employer" agreement, and that the union had not demonstrated any special circumstances that warranted approval of the agreement as a "multi-employer" agreement.

Bhagwan Marine Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established