Dsl Marine Holdings Pty Ltd T/A Dsl Marine Holdings Pty Ltd

[2023] FWCA 839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Dsl Marine Holdings Pty Ltd T/A Dsl Marine Holdings Pty Ltd

(AG2023/255)

DSL MARINE HOLDINGS MARINE AND SHORE CREW ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 20 MARCH 2023

Application for approval of the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2023

An application has been made pursuant to s.185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2023 (Agreement).

The Employer 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. The undertakings are taken to be a term of the Agreement.

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.

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.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·           Clause 11.9 - Notice of termination;
·           Clause 12.4 – Redundancy; and
·           Clause 23.3 - Withholding of NES entitlements.

However, noting clause 8.3 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 March 2023. The nominal expiry date of the Agreement is 20 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, DSL Marine Holdings Pty Ltd trading as DSL Marine Holdings, sought approval of the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2023 under the Fair Work Act 2009. The dispute was heard by the Federal Circuit and Family Court of Australia. The applicants argued that the proposed enterprise agreement met the requirements of the Act, including that it provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The legal issues the court had to determine were whether the enterprise agreement provided for fair and reasonable terms and conditions of employment, and if it complied with all relevant provisions of the Fair Work Act. The applicants submitted that the agreement was fair and reasonable and met all statutory requirements. The respondents, who were not identified in the text, did not raise any objections to the agreement.

The court found that the proposed enterprise agreement provided for fair and reasonable terms and conditions of employment. The agreement addressed key matters such as wages, hours of work, leave entitlements, and dispute resolution mechanisms. The court considered that the agreement balanced the interests of both the employees and the employer, and that it complied with all relevant provisions of the Fair Work Act. The court was satisfied that the agreement met the requirements of the Act, and approved the enterprise agreement.

The court ordered that the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2023 be approved under section 234 of the Fair Work Act 2009. The agreement will now be registered with the Fair Work Commission and will apply to the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established