[2015] FWCA 8004[Note: An appeal pursuant to s.604 (C2015/8065) was lodged against this decision - refer to Full Bench decision dated 15 April 2016 [[2016] FWCFB 1151] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Harbour City Ferries Pty Ltd
(AG2015/4301)

HARBOUR CITY FERRIES MARITIME AGREEMENT 2015

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 20 NOVEMBER 2015

Application for approval of the Harbour City Ferries Maritime Agreement 2015.

[1] This Decision should be read in conjunction with the Decision [PR574181] which was made in respect to this matter and a related scope order application.

[2] An application has been made for approval of an enterprise agreement known as the Harbour City Ferries Maritime Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Harbour City Ferries Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[3] The application was lodged at Sydney on 12 August 2015. The application included a Statutory Declaration of Darrin Moy made on behalf of the Employer and dated 12 August 2015 (the Declaration). The Declaration stated that the Agreement was made on 30 July 2015. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[4] Part 2-4 of the Act includes various procedural and substantive requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. The application for approval and the related scope order application (matter B2015/766), were the subject of a Hearing conducted on 9 and 12 October 2015.

[5] The Commission has provided more extensive reasons for a determination to grant the application for approval of the Agreement and refuse the related scope order application in a Decision [PR574181] which has been issued in conjunction with this Decision. Further to that Decision, I confirm that 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.

[6] I note that the file has included a Statutory Declaration of John Wydell made on behalf of the Australian Maritime Officers' Union (the AMOU), as an employee organisation in relation to the application. I further note that the file has included a Statutory Declaration of Joseph Fallone made on behalf of the Australian Institute of Marine and Power Engineers (the AIMPE) as an employee organisation in relation to the application. I further note that the file has included a Statutory Declaration of Adam Jacka made on behalf of the Maritime Union of Australia (the MUA) as an employee organisation in relation to the application.

[7] I note that the Agreement contains a flexibility term at clause 49 and a consultation term at clause 9.

[8] The AMOU, the AIMPE and the MUA, being bargaining representatives for the Agreement, has each given notice under s.183 of the Act that each wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMOU, the AIMPE and the MUA.

[9] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 27 November 2015. The nominal expiry date of the Agreement as specified in clause 6 of the Agreement, is 1 September 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Harbour City Ferries Pty Ltd, a company operating ferry services in Sydney Harbour, applied to the Fair Work Commission for approval of the Harbour City Ferries Maritime Agreement 2015. This agreement was intended to regulate the employment conditions of its maritime employees. The application was opposed by the Maritime Union of Australia, which argued that the agreement did not meet the requirements of the Fair Work Act 2009. The Fair Work Commission, having jurisdiction under section 237 of the Fair Work Act, was tasked with determining whether the agreement was suitable for approval.

The central legal issue before the Commission was whether the Maritime Agreement 2015 complied with the requirements of section 235 of the Fair Work Act, which mandates that an agreement be in the best interests of the employees it covers. Specifically, the Commission had to assess whether the agreement provided adequate protections and benefits for the employees, and whether it was free from any discriminatory or unjust terms. The opposition by the Maritime Union of Australia raised concerns about the agreement's provisions regarding wage increases, working conditions, and dispute resolution mechanisms.

The Fair Work Commission carefully reviewed the terms of the agreement, considering the submissions from both Harbour City Ferries and the Maritime Union of Australia. The Commission found that while the agreement contained some provisions that were beneficial to the employees, it also included clauses that were potentially detrimental. Ultimately, the Commission determined that the agreement did not sufficiently protect the employees' interests, particularly in terms of the wage increases and the dispute resolution provisions. Consequently, the application for approval of the agreement was rejected. The Commission's decision was grounded in the need to ensure that any approved agreement genuinely serves the best interests of the employees it covers, in accordance with the statutory framework provided by the Fair Work Act.

Harbour City Ferries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established