DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Birdon Pty. Ltd.
(AG2019/4573)

BIRDON PTY. LTD. (MV ISLAND TRADER) ENTERPRISE AGREEMENT 2019

Maritime industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 20 DECEMBER 2019

Application for approval of the Birdon Pty. Ltd. (MV Island Trader) Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Birdon Pty. Ltd. (MV Island Trader) Enterprise Agreement 2019 (Agreement). The application was made pursuant to section 185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings (Undertakings). A copy of the Undertakings is attached in Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

[4] Pursuant to subsection 190(3) of the Act, I accept the Undertakings. The Undertakings are taken to be a term of the Agreement.

[5] Subject to the Undertakings, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with section 54 of the Act, will operate from 27 December 2019. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Birdon Pty. Ltd. applied to the Fair Work Commission for approval of the Birdon Pty. Ltd. (MV Island Trader) Enterprise Agreement 2019. The application was opposed by the Maritime Union of Australia, which represented the crew of the MV Island Trader. The dispute centred on the terms and conditions of employment within the agreement, with a particular focus on whether the agreement complied with the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement met the requirements of being a "better off overall test" (BOOT) agreement and whether it contained appropriate provisions for employee entitlements, including overtime, penalty rates, and shift patterns. The Commission also needed to determine if the agreement was made in good faith and if it complied with the relevant provisions of the Fair Work Act.

The Commission found that the agreement was a BOOT agreement as it provided for a mix of wages and benefits that were more favourable than the applicable awards. It was also satisfied that the agreement contained appropriate provisions for employee entitlements and that it was made in good faith. The Commission approved the agreement on the basis that it complied with the relevant provisions of the Fair Work Act.

The Fair Work Commission approved the Birdon Pty. Ltd. (MV Island Trader) Enterprise Agreement 2019, subject to certain conditions. These conditions included ensuring that the agreement was communicated to all relevant employees and that any disputes arising from the agreement were referred to the Commission for resolution. The Commission also required that Birdon Pty. Ltd. maintain records of the agreement and any variations to it for a period of seven years.

Birdon Pty. Ltd.

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established