Gladstone Marine Pilot Services Pty Ltd

[2022] FWCA 540

[2022] FWCA 540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gladstone Marine Pilot Services Pty Ltd

(AG2021/9083)

Gladstone Pilot Transfer Crew Agreement 2021

Port authorities
DEPUTY PRESIDENT ASBURY	BRISBANE, 17 FEBRUARY 2022

Application for approval of the Gladstone Pilot Transfer Crew Agreement 2021

1. Gladstone Marine Pilot Services Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Gladstone Pilot Transfer Crew 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.

1. The Australian Maritime Officers’ Union (AMOU), a bargaining representative for the Agreement, filed a Form F18 Declaration of employee organisation, raising issues as to whether the Agreement passes the better off overall test (BOOT), particularly in relation to the casual rate of pay for Launch Masters.  Correspondence between the Applicant, the AMOU and the Commission did not resolve the concerns of the AMOU, and I decided to list the matter for hearing to enable the AMOU to ventilate concerns about the Agreement.  The hearing was conducted on 16 February 2022.

1. After considering the submissions of the parties made in writing and at the hearing, I indicated my provisional view that the issue raised by the AMOU did not cause the Agreement to fail the BOOT. The AMOU requested, and was granted, a further period to receive instructions from members in relation to concerns with the Agreement.  I indicated that if the issue was pressed the matter would be listed for further hearing and that it was not pressed, I would proceed to approve the Agreement.   The AMOU subsequently informed the Commission that the objection was not pressed. 

1. I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

·  Clause 20.1(d) – Notice of termination by employer;

·  Clause 20.2(b) – Notice of termination by employee; and

·  Clause 21.2 – Redundancy.

1. I note clause 5 of the Agreement provides that the Agreement is read in conjunction with the NES and where there is inconsistency between this Agreement and the NES, and the NES provides 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.

1. The Agreement does not contain a flexibility term that is consistent with the requirements of s.204 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. 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.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, I am satisfied that the ground of employees covered by the Agreement was fairly chosen.

1. The AMOU being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover the Union. In accordance with s.201(2) of the Act, I note that the Agreement covers the AMOU.

1. The Agreement is approved in accordance with s.54 of the Act and will operate from 24 February 2022. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

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