Franmarine Underwater Services T/A Franmarine

[2023] FWCA 3086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Franmarine Underwater Services T/A Franmarine

(AG2023/3131)

FRANMARINE & MUA WA INSHORE DIVING ENTERPRISE AGREEMENT 2023

Diving services
DEPUTY PRESIDENT O’KEEFFE	PERTH, 22 SEPTEMBER 2023

Application for approval of the Franmarine & MUA WA Inshore Diving Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Franmarine & MUA WA Inshore Diving Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Franmarine Underwater Services T/A Franmarine (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 27 April 2022 and the Agreement was made on 4 September 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Maritime Division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

It is noted that the Applicant does not employ anyone as a Systems Maintenance Technician and it is not foreseeable that they will do so during the life of the Agreement.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 18 April 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

The parties involved in this case were Franmarine Underwater Services trading as Franmarine, and the Maritime Union of Australia Western Australia Branch. The dispute centred around the approval of the Franmarine & MUA WA Inshore Diving Enterprise Agreement 2023. The Fair Work Commission was the court responsible for adjudicating on this matter.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009. This involved assessing if the agreement was made in good faith, contained terms that provided for the protection of employees' rights, and met other legislative criteria. The Commission also needed to determine if the agreement was an appropriate mechanism for resolving workplace issues between Franmarine and its employees represented by the Maritime Union of Australia.

In reaching its decision, the Commission examined the content of the proposed agreement and the process by which it was negotiated. The Commission considered evidence from both parties regarding the good faith of the negotiations, the fairness of the terms, and the overall suitability of the agreement. The Commission found that the agreement was made in good faith, contained necessary protections for employees, and was a fair and reasonable mechanism for resolving workplace issues. Consequently, the Commission approved the enterprise agreement, acknowledging its compliance with the relevant statutory provisions. The final orders confirmed the approval of the Franmarine & MUA WA Inshore Diving Enterprise Agreement 2023, effective from the date of the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established