Broadsword Marine Contractors Pty Ltd

[2015] FWCA 7361

[2015] FWCA 7361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broadsword Marine Contractors Pty Ltd
(AG2015/2708)

BMC WA ENTERPRISE AGREEMENT 2014

Port authorities
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 27 OCTOBER 2015

Application for approval of the BMC WA Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the BMC WA Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broadsword Marine Contractors Pty Ltd. The agreement is a single enterprise agreement.

[2] The Applicant 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.

[3] Further to my decision of 5 October 2015 1, and subject to the undertakings referred to above, I am now satisfied that the statutory requirements of ss.186, 187, 188 and 190, for the approval of an Enterprise Agreement have been met.

[4] 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.

[5] The Australian Institute of Marine and Power Engineers (AIMPE), the Maritime Union of Australia (MUA) and the Australian Maritime Officers’ Union (AMOU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers each of the organisations.

[6] The Agreement was approved on 27 October 2015 and, in accordance with s.54, will operate from 3 November 2015. The nominal expiry date of the Agreement is 2 November 2019.

DEPUTY PRESIDENT

Annexure A

Schedule 2.2

Model flexibility term

(regulation 2.08)

Model flexibility term

(1) An employer and employee covered by this enterprise agreement may agree to make an individual flexibility arrangement to vary the effect of terms of the agreement if:

(a) the agreement deals with 1 or more of the following matters: (i) arrangements about when work is performed;

(ii) overtime rates; (iii) penalty rates; (iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relation to

1 or more of the matters mentioned in paragraph (a); and

(c) the arrangement is genuinely agreed to by the employer and employee.

(2) The employer must ensure that the terms of the individual flexibility arrangement: (a) are about permitted matters under section 172 of the Fair Work Act 2009; and (b) are not unlawful terms under section 194 of the Fair Work Act 2009; and

(c) result in the employee being better off overall than the employee would be if no arrangement was made.

(3) The employer must ensure that the individual flexibility arrangement: (a) is in writing; and

(b) includes the name of the employer and employee; and

(c) is signed by the employer and employee and if the employee is under 18 years of age, signed by a parent or guardian of the employee; and

(d) includes details of:

(i) the terms of the enterprise agreement that will be varied by the arrangement;

and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms and conditions of his or her employment as a result of the arrangement; and

(e) states the day on which the arrangement commences.

(4) The employer must give the employee a copy of the individual flexibility arrangement within 14 days after it is agreed to.

(5) The employer or employee may terminate the individual flexibility arrangement:

(a) by giving no more than 28 days written notice to the other party to the arrangement;

or

(b) if the employer and employee agree in writing — at any time.

 1   [2015] FWC 6627

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