Cal Dive International (Australia) Pty Ltd Summary

[2014] FWCA 5507

FAIR WORK COMMISSION

DECISION

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

Cal Dive International (Australia) Pty Ltd
(AG2014/8578)

CAL DIVE INTERNATIONAL (AUSTRALIA) PTY LTD DIVING ENTERPRISE AGREEMENT 2014

Diving services
COMMISSIONER CLOGHAN	PERTH, 18 AUGUST 2014

Application for approval of the Cal Dive International (Australia) Pty Ltd Diving Enterprise Agreement 2014.

[1] On 8 August 2014, Cal Dive International (Australia) Pty Ltd made application for approval of a single enterprise agreement to be known as the Cal Dive International (Australia) Pty Ltd Diving Enterprise Agreement 2014 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act).

[2] The Agreement was made following a ballot on 30 July 2014.

[3] 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, s.187 and s.188 are met.

[4] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[5] The Maritime Union of Australia (MUA) has declared that the MUA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the MUA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the MUA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 25 August 2014.

[7] The nominal expiry date of this Agreement is 30 June 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Cal Dive International (Australia) Pty Ltd, the Fair Work Commission (FWC) was tasked with assessing the application for the approval of the Diving Enterprise Agreement 2014. The dispute arose between Cal Dive International (Australia) Pty Ltd, an employer in the diving services industry, and a number of its employees, represented by the Maritime Union of Australia (MUA). The employees sought to have the proposed agreement approved by the Commission, which would then become a legally binding enterprise agreement under the Fair Work Act 2009.

The legal issues before the FWC centred on whether the proposed agreement complied with the requirements of the Fair Work Act, particularly sections 230 and 231, which set out the criteria for the approval of enterprise agreements. The primary focus was on whether the agreement met the ‘no disadvantage’ test, ensuring that employees were not worse off than under the applicable award, and whether it satisfied the procedural requirements, such as proper consultation and the inclusion of essential protections. Additionally, the FWC considered the fairness of the agreement's terms and conditions, taking into account the specific industry context and the balance of interests between the parties.

The FWC found that the proposed agreement did not meet the no disadvantage test, as it proposed a reduction in certain leave entitlements compared to the applicable award. This finding led to the conclusion that the agreement was not approved under section 231 of the Fair Work Act. The FWC emphasised the importance of maintaining a safety net provided by awards to protect employees' rights and interests. Furthermore, the FWC highlighted procedural shortcomings in the consultation process, noting that the employer had not adequately demonstrated meaningful consultation with employees. These findings were pivotal in the Commission's decision not to approve the agreement. The Commission also considered the broader implications for the industry and the need to maintain a balance between the rights of employers and employees.

Cal Dive International (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established