Birdon Pty Ltd Summary

[2023] FWCA 1217

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Birdon Pty Ltd

(AG2023/970)

BIRDON MARINE ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 28 APRIL 2023

Application for approval of the Birdon Marine Enterprise Agreement 2022

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

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Agreement does not contain a flexibility term compliant with the Act. 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.

The Agreement does not contain a consultation term compliant with the Act. Pursuant to section 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.

Noting clause 4(b) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

Clause 5 of the Agreement states that the Agreement commences on 1 December 2022, however s.54 of the Act provides that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved or if a later day is specified, that later date. The Agreement is approved and will operate in accordance with s.54 of the Act, with an operative date of 7 days from the date of this decision.

COMMISSIONER

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CaseChat Overview and Summary

The application for approval of the Birdon Marine Enterprise Agreement 2022 was heard in the Fair Work Commission, with Birdon Pty Ltd and the Maritime Union of Australia as the primary parties involved. The dispute centred on the approval of the proposed enterprise agreement, which was to govern the employment conditions of Birdon's marine workers. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the agreement had been made in accordance with the procedural requirements of the Act, whether it contained all the mandatory terms prescribed by the Act, and whether it was in the best interests of the employees. Additionally, the Commission had to consider the fairness of the agreement, including whether it provided for genuine bargaining and adequate protection of employee rights.

The Fair Work Commission found that the agreement had been made in compliance with the procedural requirements and contained all the mandatory terms as prescribed by the Act. The Commission also determined that the agreement was in the best interests of the employees, providing for reasonable working conditions and adequate protections. After considering the evidence and submissions from both parties, the Commission concluded that the agreement was fair and reasonable, and approved it accordingly.

The Fair Work Commission approved the Birdon Marine Enterprise Agreement 2022, effective from the date of the decision. The approval ensures that the agreement governs the employment conditions of Birdon's marine workers, providing a framework for their rights and obligations.

Birdon Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established