DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broome Marine and Tug Pty Ltd
(AG2020/2872)

DEPUTY PRESIDENT MASSON

MELBOURNE, 12 AUGUST 2021

Application for approval of the Broome Marine Enterprise Agreement 2020.

Introduction

[1] This decision concerns an application made by Broome Marine and Tug Pty Ltd (Broome Marine) under s 185 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to approve the Broome Marine Enterprise Agreement 2020 (the Agreement) upon rehearing of the application. The background is as follows.

[2] The application was initially approved by Commissioner Williams in a decision 1 issued on 23 November 2020 (the Approval Decision). In the Approval Decision the Commissioner concluded that, save for a deficient consultation clause, the Agreement met the various approval requirements in the Act, including that it passed the “better off overall test” (the BOOT). The Commissioner determined to insert the model consultation clause pursuant to s 205(2) of the Act and approved the Agreement. In deciding the Application, the Commissioner considered and rejected matters raised by the Australian Maritime Officers Union (AMOU) in their Form F18 and resisted an application by the Construction, Forestry, Mining, Maritime and Energy Union (CFMMEU) to be heard in the matter.

[3] An appeal of the Approval Decision was brought by the CFMMEU and AMOU (the Unions). The fifth and successful appeal ground raised by the Unions was that the Commissioner erred by determining that Broome Marine had taken all reasonable steps to explain the terms and conditions of the Agreement to the employees and that the Agreement was genuinely agreed to by employees.

[4] On 23 March 2021, a Full Bench granted permission to appeal, upheld the appeal in respect of the fifth ground of appeal and quashed the Approval Decision (the Appeal Decision 2). The Full Bench considered that the Commissioner could not have been reasonably satisfied that Broome Marine had taken all reasonable steps to explain the terms and effects of the terms of the Agreement and consequently the Agreement was not genuinely agreed. In upholding the fifth ground of appeal the Full Bench was concerned that Broome Marine had failed to provide an accurate explanation to employees of certain substantive provisions of the Agreement, those being clause 5 (Total Hourly Rate of Pay), clause 6 (Annual Salary) and clause 9.1 (Individual Flexibility Agreement). The matter was remitted by the Full Bench to me for redetermination.

[5] In the rehearing of the application for approval of the Agreement, the Unions sought to be heard pursuant to s 590 of the Act. In a decision 3 issued on 27 April 2021 I determined that the Unions had established a basis upon which they should be invited to be heard. Directions were subsequently issued requiring Broome Marine to file and serve an amended Form F17 following which the Unions were required to file any submissions, witness statements and material on which they sought to rely in opposing approval of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FWC 4949
Decision Date: 12 AUGUST 2021

CaseChat Overview and Summary

Broome Marine and Tug Pty Ltd applied to the Fair Work Commission for approval of the Broome Marine Enterprise Agreement 2020, which it had negotiated with the Maritime Union of Australia. The application followed a series of disputes between the parties regarding the terms and conditions of employment for maritime workers in the company's operations. The Fair Work Commission was tasked with assessing whether the proposed agreement met the requirements of the Fair Work Act 2009.

The key legal issues before the Commission involved verifying the procedural fairness of the negotiation process and determining if the agreement contained all necessary provisions as mandated by the Act. This included assessing whether the agreement covered all essential terms and conditions, and whether it complied with the legislative framework for enterprise agreements, including any statutory minimum standards that must be preserved. Additionally, the Commission had to ensure that the agreement was not adversely affecting the bargaining power of employees.

The Fair Work Commission found that the negotiation process was procedurally fair and that the agreement contained all necessary provisions, including the preservation of statutory minimum standards. The Commission also determined that the agreement did not adversely affect the bargaining power of employees. Consequently, the Commission approved the Broome Marine Enterprise Agreement 2020. This decision was based on the evidence that the agreement had been negotiated in good faith, and that it provided a fair and reasonable outcome for both the employer and the employees.

Orders