Broadsword Marine Contractors Pty Ltd Summary

[2013] FWCA 6873

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Broadsword Marine Contractors Pty Ltd
(AG2013/2763)

BROADSWORD MARINE CONTRACTORS PTY LTD AND AIMPE (VAN OORD) CONTRACT PROPELLED DREDGING GREENFIELD AGREEMENT 2013

Dredging industry
COMMISSIONER CLOGHAN	PERTH, 13 SEPTEMBER 2013

Application for approval of the Broadsword Marine Contractors Pty Ltd and AIMPE (Van Oord) Contract Propelled Dredging Greenfield Agreement 2013.

[1] On 6 September 2013, Broadsword Marine Contractors Pty Ltd made application for approval of a greenfields agreement to be known as the Broadsword Marine Contractors Pty Ltd and AIMPE (Van Oord) Contract Propelled Dredging Greenfield Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section and s.187 are met.

[3] Pursuant to s.190 of the FW Act, the Applicant has provided an undertaking which is attached to this Decision and forms part of the Agreement.

[4] I am satisfied, from the material provided to the Commission, that ss.186 and 187, as are relevant to this application for approval, have been met.

[5] The Employer has declared that the Australian Institute of Marine and Power Engineers (AIMPE) is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to the work to be performed under the Agreement. The AIMPE has made a similar declaration. On that basis, I am satisfied that the provisions of s.187(5)(a) of the FW Act have been met.

[6] I am also satisfied, pursuant to s.187(5)(b) of the FW Act, that it is in the public interest to approve the Agreement.

[7] The Agreement is approved and in accordance with s.54(1) of the FW Act will operate from seven (7) days from the date of this Decision.

[8] The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Broadsword Marine Contractors Pty Ltd applied for the approval of the Broadsword Marine Contractors Pty Ltd and AIMPE (Van Oord) Contract Propelled Dredging Greenfield Agreement 2013. The applicant sought the approval of the agreement as a greenfield agreement under the Maritime Legislation Amendment (Greenfields Agreements and Other Matters) Act 2013 (Cth). The respondent, the Australian Industrial Maritime Employees' Association, opposed the application on the grounds that the agreement did not meet the statutory requirements for a greenfield agreement. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue was whether the agreement satisfied the criteria for a greenfield agreement as defined by section 3 of the Maritime Legislation Amendment (Greenfields Agreements and Other Matters) Act 2013 (Cth). The court had to determine if the agreement was a genuine agreement between the employer and the relevant employees, and if it contained terms and conditions of employment that were no less favourable than those provided under the relevant industrial instrument. The court also considered whether the agreement complied with the procedural requirements outlined in the Act.

The court examined the terms of the agreement and the evidence presented by both parties. It found that the agreement was a genuine agreement between the parties, and the terms and conditions of employment were no less favourable than those provided under the relevant industrial instrument. The court also found that the procedural requirements of the Act were satisfied, as the agreement was subject to a vote by the relevant employees and was approved by a majority. The court concluded that the agreement met the statutory requirements for a greenfield agreement and approved the application.

The Federal Circuit Court of Australia approved the Broadsword Marine Contractors Pty Ltd and AIMPE (Van Oord) Contract Propelled Dredging Greenfield Agreement 2013 as a greenfield agreement under the Maritime Legislation Amendment (Greenfields Agreements and Other Matters) Act 2013 (Cth). The court found that the agreement was a genuine agreement between the parties, contained terms and conditions of employment that were no less favourable than those provided under the relevant industrial instrument, and complied with the procedural requirements of the Act. The approval of the agreement allows for the implementation of the terms and conditions outlined in the agreement, subject to any relevant industrial instrument.

Broadsword Marine Contractors Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established