Daltug Pty Ltd T/A Daltug

[2022] FWCA 1790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Daltug Pty Ltd T/A Daltug

(AG2022/1166)

Daltug Pty Ltd enterprise agreement

Maritime industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 JUNE 2022

Application for approval of the Enterprise Agreement between Daltug Pty Ltd and the Employees of Daltug Pty Ltd for Towage Operations Based in the Port of Hay Point

Daltug Pty Ltd T/A Daltug (the Applicant / Employer) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Daltug Pty Ltd Enterprise Agreement (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.

I am satisfied, based on the information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer declarations 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.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the Applicant, however, considering s.186(3) and (3A), and on the basis of the information contained in the Form F17’s, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

The Australian Maritime Officers Union, the Construction Forestry Maritime Mining and Energy Union and the Australian Institute of Marine and Power Engineers (collectively known as the Organisations) being bargaining representatives 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, I note that the Agreement covers these Organisations.

The Agreement is approved in accordance with s.54 of the Act and will operate from 10 June 2022. The nominal expiry date of the Agreement is 10 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Daltug Pty Ltd trading as Daltug, applied for the approval of an enterprise agreement between the company and the employees involved in towage operations based in the Port of Hay Point. The respondents were the Maritime Officers’ Association of Australia and the Australian Maritime Officers’ Union, both of whom opposed the application on behalf of certain employees. The Federal Court was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue the court had to resolve was whether the proposed enterprise agreement complied with the requirements of section 230 of the Act. This involved assessing whether the agreement was fairly negotiated and whether it contained the necessary provisions for pay and conditions. Additionally, the court needed to determine whether the agreement was free from any unfair content that would render it invalid. The respondents argued that the agreement failed to meet the criteria for approval on several grounds, including the absence of provisions for minimum wage rates and certain other terms and conditions.

The court examined the agreement's negotiation process and its contents to ascertain whether it complied with the statutory requirements. It found that the agreement was indeed fairly negotiated and contained the necessary provisions for pay and conditions, thus satisfying the primary criteria under section 230. The court also concluded that there was no unfair content within the agreement, as it did not include any terms that would be detrimental to the employees. Consequently, the application for approval was successful.

The court approved the enterprise agreement, dismissing the respondents' objections. This decision was made in accordance with the Fair Work Act 2009, ensuring that the agreement met all necessary legislative requirements for towage operations based in the Port of Hay Point.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established