DSL Marine Holdings Pty Ltd Summary

[2014] FWCA 7892

FAIR WORK COMMISSION

DECISION

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

DSL Marine Holdings Pty Ltd
(AG2014/7397)

DSL MARINE HOLDINGS MARINE AND SHORE CREW ENTERPRISE AGREEMENT 2014

Maritime industry
COMMISSIONER CAMBRIDGE	SYDNEY, 7 NOVEMBER 2014

Application for approval of the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2014(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by DSL Marine Holdings Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Brisbane on 4 September 2014. The application included a Statutory Declaration of Greg Murphy made on behalf of the Employer and dated 3 September 2014, (the Declaration). The Declaration stated that the Agreement was made on 22 August 2014. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was listed for Hearing on 23 September 2014 at which time Mr G Power from Drayton’s Workplace Consulting Pty Ltd (Drayton’s) together with Messrs G Murphy and S Dimech appeared for the Employer, and Mr K Mosey appeared as a representative of employees to be covered by the Agreement. During the proceeding held on 23 September, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Messrs Murphy and Power provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 14 and 24 October 2014, from Drayton’s, which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 13 and a consultation term at clause 14.

[8] I am prepared to accept the Undertakings respectively dated 14 and 24 October 2014. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. It is noted that there is a typographical error in the Undertakings dated 24 October 2014, whereby a reference to Clause 16 should read Clause 18.1. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 14 November 2014. In accordance with clause 6.2 of the Agreement the nominal expiry date of the Agreement is 7 November 2018.

COMMISSIONER

Undertakings:

Printed by authority of the Commonwealth Government Printer

DSL Marine Holdings Pty Ltd was the applicant in the Fair Work Commission, seeking approval for the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2014. The dispute involved the terms and conditions of employment for the marine and shore crew of the applicant company. The Fair Work Commission was required to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009 and whether it met the criteria for being made an approved agreement.

The central legal issues before the Commission were whether the agreement contained mandatory terms that were required by the Fair Work Act, whether the agreement was made in good faith and whether it was fair and reasonable. Additionally, the Commission needed to consider whether the agreement provided for a proper process for resolving disputes and whether it complied with the requirements for enterprise agreements under the Fair Work Act.

The Fair Work Commission found that the agreement contained all the mandatory terms required by the Fair Work Act and was made in good faith. The Commission concluded that the agreement was fair and reasonable, providing for proper processes for resolving disputes. The Commission was satisfied that the agreement met all the criteria for being made an approved agreement under the Fair Work Act.

As a result, the Fair Work Commission approved the DSL Marine Holdings Marine and Shore Crew Enterprise Agreement 2014, making it a legally binding agreement between DSL Marine Holdings Pty Ltd and its marine and shore crew employees. The Commission's approval was based on the finding that the agreement complied with all relevant provisions of the Fair Work Act and met the necessary criteria for enterprise agreements.

DSL Marine Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established