Harbour City Ferries Pty Ltd - [2014] FWCA 1888

[2014] FWCA 1888

FAIR WORK COMMISSION

DECISION

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

Harbour City Ferries Pty Ltd
(AG2014/416)

HCF SALARIED AND SENIOR STAFF AGREEMENT 2014

Clerical industry
COMMISSIONER CARGILL	SYDNEY, 31 MARCH 2014

Application for approval of the HCF Salaried and Senior Staff Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the HCF Salaried and Senior Staff Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Harbour City Ferries (HCF). The Agreement is a single-enterprise agreement.

[2] The application for approval of the Agreement discloses that there were three employee organisations (unions) which were bargaining representatives involved in the agreement making process. Those organisations are:

● The Australian Institute of Marine and Power Engineers (AIMPE);
● Australian Municipal, Administrative, Clerical and Services Union, New South Wales and ACT (Services) Branch (ASU); and
● The Maritime Union of Australia (MUA).

[3] Each of the three unions has provided a statutory declaration, Form F18, in relation to the application. Each has indicated that it wants to be covered by the Agreement. AIMPE supports the approval of the Agreement. The ASU and MUA neither support nor oppose the approval. The ASU and MUA each raise concerns about the pre-approval process and note that, prior to the receipt of HCF’s statutory declaration in support of the application, they had not been aware of the particular awards being relied upon for the purpose of the Better Off Overall Test (the BOOT). As a consequence they had not had sufficient time to consider whether the Agreement satisfied the BOOT.

[4] HCF was asked to respond to the issues raised by the ASU and MUA. It was also asked to provide undertakings to address specific concerns which I had in relation to the redundancy and notice of termination provisions of the Agreement, clauses 50, 53 and 54. Clarification was also sought in relation to what appeared to be typographical or clerical errors in HCF’s Forms F16 and F17.

[5] HCF has provided written undertakings which meet the concerns which I had with clauses 50, 53 and 54 of the Agreement. Pursuant to section 190(4) of the Act I sought the views of each of the three unions as the only known bargaining representatives for the Agreement. In an email dated 19 March 2014, the ASU indicated that the undertakings appeared to address the concerns I had raised. No views have been expressed on the undertakings by AIMPE or the MUA.

[6] HCF has provided replacement Forms F16 and F17 which have corrected the various errors and contradictions in the original forms.

[7] In correspondence dated 14 March 2014 and an email dated 18 March 2014, HCF responded to the issues raised by the ASU and MUA. The ASU and MUA each replied in separate letters both dated 21 March 2014.

[8] The issue in relation to whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Harbour City Ferries Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWCA 1888
Decision Date: 31 MARCH 2014

CaseChat Overview and Summary

The parties involved in the case were Harbour City Ferries Pty Ltd and the Maritime Officers' Association of Australia. The dispute centred around the application for approval of the HCF Salaried and Senior Staff Enterprise Agreement 2014. The matter was heard in the Fair Work Commission, an Australian labour tribunal.

The primary legal issues the court had to address were whether the agreement complied with the requirements of the Fair Work Act 2009 and whether it adequately protected the employees' rights and interests. This involved assessing whether the agreement contained the minimum terms and conditions mandated by the Act, and whether it had been fairly negotiated. The court also had to determine if the agreement was in the best interest of the employees and if it provided appropriate protections against unfair dismissal.

The court found that the agreement was in substantial compliance with the requirements of the Fair Work Act 2009. It was noted that the agreement included all the minimum terms and conditions, and had been fairly negotiated between the employer and the union. The court was satisfied that the agreement provided adequate protections for employees, including provisions for unfair dismissal. Consequently, the court approved the enterprise agreement, recognising its benefits for both the employer and the employees.

The final orders included the approval of the HCF Salaried and Senior Staff Enterprise Agreement 2014, subject to certain conditions that the employer must adhere to in order to maintain the agreement's validity. The court's decision affirmed the agreement as a legitimate and beneficial arrangement for both parties, while ensuring compliance with labour laws.

Orders