Gladstone Marine Pilots Services Pty Ltd

[2022] FWCA 297

[2022] FWCA 297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gladstone Marine Pilots Services Pty Ltd

(AG2021/9082)

Gladstone Marine Pilots Agreement 2021

Port authorities
DEPUTY PRESIDENT ASBURY	BRISBANE, 2 FEBRUARY 2022

Application for approval of the Gladstone Marine Pilots Agreement 2021

1. Gladstone Marine Pilots Services Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Gladstone Marine Pilots 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. I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

·   Clause 23.1(d) – Termination by Employer; and

·   Clause 23.2(b) – Termination by Employee.

1. I note clause 5 of the Agreement provides that the Agreement shall be read in conjunction with the NES and that no terms of the Agreement shall be less favourable, and where a term of the Agreement is less favourable the corresponding term of the NES will apply. 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 in s.205 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. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

1. The Australian Maritime Officers Union being a bargaining representative for the Agreement, has 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 this organisation.

1. The Agreement is approved in accordance with s.54 of the Act and will operate from 9 February 2022. The nominal expiry date of the Agreement is 31 October 2025.

DEPUTY PRESIDENT

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