Curtis Island Services Pty Ltd

[2021] FWCA 3220

[2021] FWCA 3220

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Curtis Island Services Pty Ltd
(AG2021/5194)

CURTIS ISLAND SERVICES PTY LTD ENTERPRISE AGREEMENT 2021

Port authorities
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 JUNE 2021

Application for approval of the Curtis Island Services Pty Ltd Enterprise Agreement 2021.

[1] Curtis Island Services Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as Curtis Island Services Pty Ltd Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that the following provisions of the Agreement may be inconsistent with the National Employment Standards (NES):

•  Clause 22.2 – Leave;

•  Clause 45.1.2 – Abandonment of employment; and

•  Clause 46.1.2 – Casual Conversion.

[5] However, I note clause 7.2 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[6] A concern was raised in relation to clause 34.3 of the Agreement which requires employees to repay a proportion of training costs where they leave employment within two years of completing the training, and whether this clause is inconsistent with Division 2, Part 2 – 9 of the Act.

[7] The Applicant provided a response to this concern, to the effect that the clause allows an employee to apply to the employer for funding of further training which is over and above the requirements of the employee’s role, and that as the employee and employer agree to the further training being undertaken, the employee has prior notice of the employer’s expectation that funding is reciprocated with at least 2 years’ service thereafter.

[8] While I accept the Applicant’s response in relation to this concern, I note that any deductions from the wages of employees must be permitted deductions that are consistent with the requirements of Division 2, Part 2 – 9 of the Act.

[9] The Australian Institute of Marine and Power Engineers, the Australian Maritime Officers' Union and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declarations provided by the organisation, I note that the Agreement covers these organisations.

[10] I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 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 ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[11] The Agreement is approved in accordance with s.54 of the Act and will operate from 10 June 2021. The nominal expiry date of the Agreement is 1 January 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE511727  PR730454>

Annexure A