Bhagwan Marine Pty Ltd

[2016] FWC 3427

[2016] FWC 3427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bhagwan Marine Pty Ltd
(AG2016/539)

COMMISSIONER ROE MELBOURNE, 26 MAY 2016

Application for approval of the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2016.

[1] Bhagwan Marine Pty Ltd (Bhagwan) applied for the approval of the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2016. Objections were made to the approval of the Agreement by The Maritime Union of Australia (MUA), The Australian Maritime Officers’ Union (AMOU) and The Australian Institute of Marine and Power Engineers (AIMPE). Bhagwan says that 7 casual employees were given the opportunity to vote on the Agreement and five of the 7 voted and voted in favour of the Agreement. The unions were not bargaining representatives for any of the 7 employees. However, I considered that the unions could assist me in determining the matters in contention given that they are covered by a large number of other agreements with Bhagwan and associated companies. 

[2] As none of the unions have established that they were bargaining representatives, if I do approve the Agreement I cannot note the unions as covered by the Agreement. 

[3] Detailed submissions were provided by Bhagwan and the unions, a hearing was conducted and the parties were permitted to provide supplementary written submissions. Evidence was given in proceedings by Mr Koltasz who is a human resources manager for Bhagwan. I have considered all of this material. Mr Koltasz provided a further statutory declaration after the hearing; however, as this was not subject to cross examination I have not had regard to that statement. 

[4] I am satisfied that save for the following contentious matters, the requirements of the legislation for the approval of the Agreement have been met. The contentious matters are:

● Was the employee bargaining representative independent?
● Was the group of employees fairly chosen?
● What is the relevant Award(s) for the purpose of the BOOT?
● Is the BOOT met?
● If the BOOT is met do the proposed undertakings resolve the issue and do they constitute substantial change?

[5] The Agreement covers a range of classifications including ship master. The employee bargaining representative was a ship master. I accept the evidence of Mr Koltasz that the employee was selected by the employees free from any pressure of influence from the employer. I also accept his evidence that the employee bargaining representative was one of the seven employees who had the opportunity to vote for the Agreement. I accept that the master does not have the power to hire and fire employees. I accept that the master has some level of authority over the other employees on the ship. On balance I am not satisfied that there is a proper basis to find that the employee bargaining representative was not independent. 

[6] I note that the unions submit that the employer could and should have brought evidence from relevant employees as to the question of independence. The process of approval of agreements should be conducted without unreasonable delay or formality. I did not consider it necessary to require evidence from employees in order to inform myself in the circumstances of this case. 

[7] I am satisfied that the operations of Bhagwan and related entities are generally covered by other agreements which are defined by either type of work or geography. I accept the evidence of Mr Koltasz that the company is expanding to seek work on the Eastern seaboard and that the work in question is not covered by the other agreements. I accept that the amount of work performed within the scope of the Agreement is at this stage relatively small and that it consists of relatively short term projects. I also accept that the work is geographically and operationally distinct. I accept the evidence of Mr Koltasz that the 7 employees were the only employees engaged to perform work within the scope of the Agreement within the period between notification of bargaining and the making of the Agreement. I am not satisfied that there is any basis to conclude that the scope of the Agreement or the selection of the employees has been contrived or artificial. If this was the case then there may well be a reason to question genuine agreement and/or whether or not the scope has been fairly chosen. I am satisfied that the scope has been fairly chosen. 

[8] The 7 casual employees were not all performing work within the scope of the Agreement on all days within the period between the notification date and the making of the Agreement. However, I accept the evidence of Mr Koltasz that at least 5 of the employees were performing work for a substantial part of the period and at least 4 were performing work on the day of the vote. I accept that some of the employees continue to be employed within the scope of the Agreement. Some of the employees were not actually performing work on the day of the vote but may have been on a regular day off and therefore may have been employed on that day notwithstanding that they were casual employees. It is not necessary to decide whether or not they were eligible to vote as it would not affect the outcome. 

[9] There is no dispute that the BOOT is met with respect to the Ports Harbours and Enclosed Water Vessels Award 2010. I am satisfied that the scope of the Agreement allows work to also be performed within the scope of the Marine Towage Award 2010. I am not satisfied that the jobs accepted by Bhagwan will remain within the scope of the Ports Award. I am therefore satisfied that the BOOT must be conducted against both Awards. 

[10] With respect to the Towage Award the issues identified which may result in a disadvantage when compared to the Award are: daily allowance for outside port work, annual leave, and insurance. I am satisfied that given that the rates of pay in the Agreement and the daily allowances for work beyond one day and a number of other matters are superior to the Award, these deficiencies can be rectified by undertakings without resulting in a substantial change to the Agreement or disadvantage to employees. 
[11] I am not satisfied that an undertaking in respect to daily rate is required given the other benefits in the Agreement and the higher rates for voyages of more than one day. I am satisfied that the undertakings offered at paragraphs 24 and 26 of the Applicants final submissions with appropriate amendment are sufficient to ensure that the BOOT is met. The undertakings should be amended so that they are not dependent upon the employer’s judgement about the relevant Award but instead relate to the nature of work performed which should be set out in the undertaking. 

[12] Subject to receipt of satisfactory undertakings within 72 hours the Agreement will be approved. 

COMMISSIONER

Appearances:

Mr S Kemp and Ms S Walker appeared for the Applicant from Perth.

Ms J Thompson appeared for the AMOU from Melbourne.

Mr P Garrett and Ms S Andronikos appeared for the MUA from Sydney.

Hearing details:

2016

Melbourne by video to Perth and Sydney

May 11

Final written submissions:

18 May 2016

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580876>