BSE Cairns Slipways Pty Limited

[2014] FWCA 564

[2014] FWCA 564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

BSE Cairns Slipways Pty Limited
(AG2013/12170)

CAIRNS SLIPWAYS ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
DEPUTY PRESIDENT SAMS	SYDNEY, 23 JANUARY 2014

Application for approval of the Cairns Slipways Enterprise Agreement 2013.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BSE Cairns Slipways Pty Limited (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Cairns Slipways Enterprise Agreement 2013 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU) and the Communications, Electrical, Electronic Energy, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively, the ‘Unions’). The Agreement is to cover 38 employees who are engaged in the provision of marine refit and repair services. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 3 March 2013, and voting for the Agreement’s approval took place on 9 December 2013. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 27 of the 30 employees who voted, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 December 2013, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr W Shaw, Manager, identified the Manufacturing and Associated Industries and Occupations Award 2010 [MA000010] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Shawsaid that the Agreement does provide for a term that is less beneficial than under the Modern Award in that there is no entitlement to overtime rates of pay for work performed between 7:00pm and 3:30am. However, the Agreement provides for significantly higher rates of pay than the reference instrument. It was also said that another benefit was the ability for employees to cash out unused personal leave in specific circumstances. Rates of pay are to be increased by 3.5% on 1 July 2013, 1 July 2014 and 1 July 2015. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 6.6 and 6.1 respectively, and a disputes resolution procedure at clause 6.5 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 17 January 2014, Mr W Shaw appeared for the applicant, Ms L Midson for the AMWU, Mr M Haire for the CEPU and Mr P Gunsberger for the AWU. The Unions had each filed Declarations in relation to the application (Form 18) giving notice that they wished to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Unions are to be covered by the Agreement. Mr Shaw outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He said that the employees would be receiving backpay once the Agreement was approved. However, while the AWU and the CEPU each indicated that they supported the approval of the Agreement, the AMWU did not. Ms Midson expressed concern that work performed between 7:00pm and 1:30am was paid at ordinary rates of pay. However, she did concede that the Agreement met the BOOT.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Cairns Slipways Enterprise Agreement 2013.Pursuant to s 54 of the Act, the Agreement shall operate from 24 January 2014 and have a nominal expiry date of 30 June 2016.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code G, AE406508  PR547078>