Broome Marine and Tug Pty Ltd

[2020] FWCA 6198

[2020] FWCA 6198

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Broome Marine and Tug Pty Ltd
(AG2020/2872)

BROOME MARINE ENTERPRISE AGREEMENT 2020

Port authorities
COMMISSIONER WILLIAMS	PERTH, 23 NOVEMBER 2020

Application for approval of the Broome Marine Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Broome Marine Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Broome Marine and Tug Pty Ltd. The Agreement is a single-enterprise agreement.

[2] The Construction, Forestry, Maritime, Mining and Energy Union - Maritime Union of Australia Division (the CFMMEU) is seeking to be heard in relation to the application made to the Commission in this matter.

[3] The CFMMEU requested and was provided with copies of the Form F16-Application for approval of an enterprise agreement and the Form F17-Employer’s declaration in support of an application for approval of an enterprise agreement in redacted form to protect personal information.

[4] Written submission in support of the CFMMEU being heard and detailing their concerns have been filed with the Commission.

[5] The issues raised by the CFMMEU’s proposed intervention are:

a. whether the Agreement was genuinely agreed to by the employees covered by the Agreement because of compliance with s.180(5) of the Act;

b. whether the Agreement passed the better off overall test; and

c. whether the Agreement contains terms that are not about permitted matters within the meaning of s.172(1) of the Act.

[6] The CFMMEU submits it is eligible to represent employees employed in the marine towage industry as defined in the Marine Towage Award 2020 [MA000050] including employees whose employment may fall within the coverage of the above proposed Agreement.

[7] Consequently, the CFMMEU submits that some of Applicant’s employees or prospective employees that may be employed under the Agreement are eligible to be members of the CFMMEU.

[8] The CFMMEU then submits that approval of the Agreement and its effect concern the CFMMEU. Such concern, it is submitted, is why the CFMMEU has sought and should be granted permission to make submissions to the Commission at first instance to oppose approval of the Agreement.

[9] The CFMMEU submits the Commission should exercise its discretion under s.590 of the Act and allow it to be heard in this matter.

[10] The Applicant opposes the CFMMEU being heard in this matter.

[11] In this case the CFMMEU was not involved in the bargaining process.

[12] The CFMMEU has not demonstrated that it has any right, interest or legitimate expectation concerning the approval of the Agreement. Neither the CFMMEU’s interests nor its members will be directly affected by the outcome of this application.

[13] Given the CFMMEU was not a participant in the bargaining process the CFMMEU has no particular knowledge of relevant events. Reflecting this much of the submission it has put forward concerning whether the Agreement was genuinely agreed to by the employees is in generic terms only.

[14] In my view the CFMMEU has not put forward a sound reason why the Commission should exercise its discretion under s.590 of the Act and allow it to be heard in this matter.

[15] Consequently, I have decided that the CFMMEU will not be heard further regarding this application.

Consideration

[16] The Australian Maritime Officers’ Union (the AMOU) has filed a F18 Declaration and therein advised that it opposes approval of the Agreement and criticises the Dispute Settlement clause and the Consultation clause. These concerns are however not a barrier to the Agreement being approved.

[17] The AMOU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[18] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[19] I note Clause 10 Consultation does not provide for representation of employees for the purposes of consultation. Consequently, pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 1 is taken to be a term of the Agreement.

[20] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 November 2020. The nominal expiry date of the Agreement is 22 November 2024.

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<AE509562  PR724684>

 1   Section 2.09 and Schedule 2.3 of the Fair Work Regulations 2009