Bhagwan Marine Pty Ltd T/A Bhagwan Marine

[2022] FWCA 2044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bhagwan Marine Pty Ltd T/A Bhagwan Marine

(AG2022/1837)

Bhagwan Marine Pty Ltd and the CFMMEU (Maritime Division) Victoria Enterprise Agreement 2022

Maritime industry
COMMISSIONER CIRKOVIC	MELBOURNE, 23 JUNE 2022

Application for approval of the Bhagwan Marine Pty Ltd and the CFMMEU (Maritime Division) Victoria Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Bhagwan Marine Pty Ltd and the CFMMEU (Maritime Division) Victoria Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Bhagwan Marine Pty Ltd T/A Bhagwan Marine. The Agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 16 June 2022.

On 16 June 2022, my Chambers sent correspondence to the parties seeking to address concerns with certain aspects of the Agreement and invited the parties to address these matters. The concerns were as follows:

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

The Construction Forestry Maritime Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement was approved on 23 June 2022 and, in accordance with s.54, will operate from 30 June 2022. The nominal expiry date of the Agreement is 23 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Bhagwan Marine Pty Ltd, trading as Bhagwan Marine, sought approval of the Enterprise Agreement with the CFMMEU (Maritime Division) Victoria. The applicant, a company engaged in the maritime industry, aimed to formalise working conditions, wages, and other terms of employment with its employees, who were represented by the CFMMEU. The case was heard by the Fair Work Commission.

The primary legal issues addressed by the Commission involved whether the proposed Enterprise Agreement complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement met the procedural fairness standards and substantive fairness criteria. Procedural fairness required that the agreement was genuinely negotiated and that the process was free from coercion, undue influence, or other irregularities. Substantive fairness assessed whether the terms of the agreement were fair and reasonable, considering the interests of both parties.

The Commission examined the negotiation process and found it to be fair and genuine, with no evidence of coercion or undue influence. The Commission further found the terms of the agreement to be fair and reasonable, taking into account the economic and operational context of the maritime industry. The proposed wages, conditions, and other terms were deemed to be in line with industry standards and provided a fair balance of rights and obligations for both parties. The Commission approved the Enterprise Agreement, finding it to meet the necessary legal standards.

The Commission's decision included a formal approval of the Enterprise Agreement, with specific terms and conditions outlined in the document. The agreement was to be registered with the Fair Work Commission and would govern the employment conditions of the employees until its expiry or until a new agreement was negotiated and approved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established