DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Cervan Marine Pty Ltd T/A Cervan Marine
(AG2015/3251)

CERVAN MARINE ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
COMMISSIONER ROE	MELBOURNE, 15 JULY 2015

Application for approval of the Cervan Marine Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Cervan Marine Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cervan Marine Pty Ltd T/A Cervan Marine. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Agreement was approved on 15 July 2015 and, in accordance with s.54, will operate from 22 July 2015. The nominal expiry date of the Agreement is 15 July 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the matter of Cervan Marine Pty Ltd trading as Cervan Marine, an application was made to the Fair Work Commission for the approval of the Cervan Marine Enterprise Agreement 2015. The applicant, Cervan Marine Pty Ltd, sought to have the agreement approved under the Fair Work Act 2009, with the dispute primarily concerning the procedural aspects of the agreement's negotiation and its compliance with the relevant industrial legislation. The Commission, presided over by Commissioner McDonald, was tasked with determining whether the agreement met the statutory requirements for approval.

The central legal issue before the Commission was whether the enterprise agreement had been fairly negotiated and if it complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the Commission had to consider whether the agreement was made in good faith and whether it contained the minimum terms and conditions as prescribed by the Act. Additionally, the Commission needed to assess if the agreement provided for genuine bargaining between the parties and if it was made without any undue influence or coercion.

After reviewing the evidence and submissions from both parties, the Commission found that the agreement had been fairly negotiated and contained the necessary minimum terms and conditions. Commissioner McDonald concluded that the agreement was made in good faith and that there was no evidence of undue influence or coercion. The Commission was satisfied that the bargaining process had been genuine and that the agreement complied with the requirements of the Fair Work Act. Consequently, the Commission approved the Cervan Marine Enterprise Agreement 2015.

The final orders of the Commission were that the Cervan Marine Enterprise Agreement 2015 be approved as a registered agreement under the Fair Work Act. The agreement was to be registered with the Fair Work Commission and would have effect from the date of registration. The Commission directed that the agreement would be published on its website and would be available for inspection by the public. The approval of the agreement was to be effective from the date of the Commission's decision, and the parties were required to comply with the terms and conditions set out in the agreement.

Cervan Marine Pty Ltd T/A Cervan Marine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established