Broadsword Marine Contractors Pty Ltd

[2013] FWCA 4899

FAIR WORK COMMISSION

DECISION

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

Broadsword Marine Contractors Pty Ltd
(AG2013/1924)

BROADSWORD MARINE CONTRACTORS PTY LTD AND AUSTRALIAN MARITIME OFFICERS UNION GORGON GREENFIELD AGREEMENT 2013

Maritime industry
COMMISSIONER CLOGHAN	PERTH, 22 JULY 2013

Application for approval of the Broadsword Marine Contractors Pty Ltd and Australian Maritime Officers Union Gorgon Greenfield Agreement 2013.

[1] On 11 July 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 Australian Maritime Officers Union Gorgon 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] 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.

[4] The Employer has declared that the Australian Maritime Officers Union (AMOU) 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 AMOU 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.

[5] 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.

[6] 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.

[7] The nominal expiry date of the Agreement is 31 July 2014.

COMMISSIONER

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CaseChat Overview and Summary

Broadsword Marine Contractors Pty Ltd sought approval of an industrial instrument known as the Gorgon Greenfield Agreement 2013, which was intended to govern the employment terms and conditions of its employees. The Australian Maritime Officers Union opposed the application, arguing that the agreement did not adequately protect the interests of its members. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues before the Commission centred on whether the agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for minimum terms and conditions of employment, was free from prohibited content, and was made in good faith. The Commission also had to consider whether the agreement provided for proper dispute resolution mechanisms and did not discriminate against employees on prohibited grounds.

The Commission found that the agreement was appropriately drafted and did not contain any provisions that were contrary to public policy or that failed to provide for minimum terms and conditions of employment. The Commission also found that the agreement was made in good faith and did not discriminate against employees. The Commission further found that the agreement contained appropriate dispute resolution mechanisms. The Commission concluded that the agreement met the statutory requirements under the Fair Work Act and approved the agreement.

The Fair Work Commission approved the Gorgon Greenfield Agreement 2013, subject to certain modifications to ensure compliance with the Fair Work Act. The modifications related to the agreement's provisions on redundancy payments and the calculation of overtime rates. The Commission directed the parties to implement the modified agreement and to notify affected employees of the changes. The Commission's decision was final and binding, and could not be appealed except on limited grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established