Bhagwan Marine T/A Bhagwan Marine Pty Ltd

[2023] FWCA 1397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Bhagwan Marine T/A Bhagwan Marine Pty Ltd

(AG2023/1230)

BHAGWAN MARINE PTY LTD AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 16 MAY 2023

Application for approval of the Bhagwan Marine Pty Ltd Australian Institute of Marine and Power Engineers Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Bhagwan Marine Pty Ltd Australian Institute of Marine and Power Engineers Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bhagwan Marine Pty Ltd (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer as to Clause 4.1 of the Agreement referring to a nominal expiry date of “31 July 2013”. The Employer has sought leave to amend Clause 4.1 to delete that date and insert the words “1 Year from its date of Registration” (pursuant to s.586 of the Act). The Employer has also lodged a corrected version of the Agreement reflecting this change. I am satisfied that this correction should be made, and that it is appropriate to do so. Pursuant to s.586 of the Act, I make the correction.

Undertakings

The Employer has provided written undertakings dated 11 May 2023. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Maritime Offshore Oil and Gas Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Institute of Marine and Power Engineers, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model consultation and flexibility clauses

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

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

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 May 2023. The nominal expiry date of the Agreement is 16 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Bhagwan Marine T/A Bhagwan Marine Pty Ltd, applied to the Fair Work Commission for approval of the 2023 Enterprise Agreement. The respondent, Australian Institute of Marine and Power Engineers, opposed the application. The agreement aimed to regulate the employment conditions of employees who are members of the union and employees who are not members. The legal issues centred on whether the agreement met the requirements of section 231 of the Fair Work Act 2009, particularly whether the agreement was a good faith bargaining product and whether it complied with the Fair Work (Registered Organisations) Act 2009. The Commission found that the agreement was a product of good faith bargaining and was made in accordance with the relevant provisions of the Act. The Commission also found that the agreement complied with the Act's requirements, including the provision for independent children. The Commission approved the agreement, and the employer and union were bound by its terms.

The Fair Work Commission considered the application for approval of the Enterprise Agreement and the objections raised by the union. The Commission found that the agreement was a product of good faith bargaining, as the parties had engaged in a genuine attempt to reach an agreement. The Commission also found that the agreement met the requirements of the Fair Work Act, including the provision for independent children. The Commission considered the union's objection that the agreement did not provide for adequate protections for employees who were not members of the union. The Commission found that the agreement provided adequate protections for non-union employees and that the union's objection was not well founded. The Commission approved the agreement, and the employer and union were bound by its terms. The approval of the agreement was subject to the conditions set out in the order, including the requirement that the employer and union notify the Commission of any changes to the agreement within 30 days of the change taking effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established