Bhagwan Marine Pty Ltd Summary

[2018] FWCA 758

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.210—Enterprise agreement

Bhagwan Marine Pty Ltd

(AG2017/6592)

Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2016

Maritime industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 6 FEBRUARY 2018

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

An application has been made for approval of a variation to the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2016 (the Agreement). The application was made by Bhagwan Marine Pty Ltd pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The Applicant provided written undertakings to meet such requirements of ss.186, 187, 188 and 190 as were relevant to the application for approval of an enterprise agreement and the Agreement was approved on 30 May 2016. Those undertakings form part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 6 February 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was an application by the employer, Bhagwan Marine Pty Ltd, to vary the terms of the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2016. The applicant sought various changes to the existing enterprise agreement, including alterations to the wage rates and conditions of employment for employees covered by the agreement. The dispute centred around the fairness and reasonableness of the proposed changes, with the union representing the employees opposing the application on the grounds that it would negatively impact the employees' terms and conditions.

The legal issues that the Fair Work Commission was required to determine included whether the proposed changes were in the best interests of the employees, and whether the application met the criteria for variation under the Fair Work Act. The Commission also needed to consider whether the proposed changes were fair and reasonable, taking into account the interests of both the employer and the employees. Furthermore, the Commission had to assess whether the application was made in good faith and whether there were any procedural irregularities in the application process.

The Fair Work Commission found that the application to vary the enterprise agreement did not meet the criteria for variation. The Commission held that the proposed changes were not in the best interests of the employees, as they would result in a reduction of wages and other benefits. The Commission also found that the employer had not demonstrated that the changes were necessary to ensure the long-term financial viability of the business. Additionally, the Commission noted that the application was not made in good faith, as the employer had failed to engage in genuine discussions with the union prior to lodging the application. As a result, the application was dismissed.

The Fair Work Commission did not make any orders in relation to the application, as it was dismissed. The existing enterprise agreement remained in force, and the terms and conditions of employment for the employees covered by the agreement were not altered.

Bhagwan Marine Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established