Bhagwan Marine Pty Ltd T/A Bhagwan Marine Summary

[2023] FWCA 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bhagwan Marine Pty Ltd T/A Bhagwan Marine

(AG2023/266)

BHAGWAN MARINE PTY LTD INSHORE MARITIME ENTERPRISE AGREEMENT 2023

Maritime industry
COMMISSIONER SIMPSON	BRISBANE, 4 MAY 2023

Application for approval of the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2023 (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 Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Australian Institute of Marine and Power Engineers (AIMPE), the Australian Maritime Officers’ Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) all lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the AIMPE, AMOU and CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the respondents, the Transport Workers Union of Australia and the Maritime Union of Australia, for approval of the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2023. The applicant, Bhagwan Marine Pty Ltd, trading as Bhagwan Marine, contested the application on various grounds. The Commission had to determine whether the agreement met the criteria for approval as stipulated in the Fair Work Act 2009.

The primary legal issues revolved around whether the agreement complied with the procedural and substantive requirements for enterprise agreements under the Act. Bhagwan Marine argued that the agreement was not genuinely negotiated and lacked proper consultation. The Commission needed to assess the evidence of genuine negotiation and the adequacy of consultation processes. Additionally, the fairness of the agreement's terms and conditions, including pay rates, hours of work, and other employment conditions, was subject to scrutiny.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement was genuinely negotiated and that the requisite consultation processes were followed. The terms of the agreement were deemed fair and reasonable, taking into account the specific circumstances of the enterprise and its workforce. Consequently, the application for approval was successful, and the Commission certified the agreement as meeting all necessary legislative requirements.

The Fair Work Commission approved the Bhagwan Marine Pty Ltd Inshore Maritime Enterprise Agreement 2023, effective from the date of the decision. This outcome ensures that the terms and conditions of employment for the maritime workers are governed by the newly certified agreement, providing certainty and stability in their industrial relations.

Bhagwan Marine Pty Ltd T/A Bhagwan Marine

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established