DECISION

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

Inco Ships Pty Limited
(AG2015/6927)

COMMISSIONER CAMBRIDGE

SYDNEY, 6 JULY 2017

Application for approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services.

[1] This Decision concerns an application for approval of an enterprise agreement known as the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). The application has been made by Inco Ships Pty Ltd (Inco). The Agreement is a single-enterprise agreement.

[2] This matter has had a long and difficult history. The application was lodged at Melbourne on 9 December 2015. The application was the subject of an Interim Decision issued by the Fair Work Commission (the Commission) on 16 March 2016 1 (the Interim Decision). The Interim Decision was subsequently the subject of a Decision of a Full Bench of the Commission issued on 26 May 20162 (the Full Bench Decision).

[3] Following the Full Bench Decision, further disputation arose between Inco and the two Unions that had been granted standing as interveners in the matter, The Australian Institute of Marine and Power Engineers (the AIMPE), and The Australian Maritime Officers’ Union (the AMOU). This disputation involved contested Summons for Production and related issues which were eventually resolved by further determinations of the Commission. In due course, the application proceeded to a Hearing held at Sydney on 6 June 2017.

[4] At the Hearing held on 6 June, Ms S Zeitz, solicitor, from Zeitz Workplace Lawyers continued her appearance on behalf of Inco. Mr N Niven together with Mr S Littlewood appeared for the AIMPE, and Ms J Thompson appeared via video link for the AMOU.

[5] In support of the application, Ms Zeitz introduced evidence by way of a statement of Cassandra Konnecke, made on behalf of Inco and dated 29 May 2017. Ms Konnecke was called as a witness, and she attested to the veracity of her statement which became Exhibit 3 in the proceedings. The AIMPE and the AMOU did not introduce any further evidentiary material at the Hearing held on 6 June. All Parties made oral submissions in elaboration of their respective documentary submission materials.

[6] At the Hearing of 6 June, the AIMPE and the AMOU (the Unions) advanced argument against approval for the Agreement. The basis for the Unions’ opposition to approval of the Agreement involved various identified pre-approval and process issues, together with an assertion that the Agreement did not pass the Better Off Overall Test (BOOT). Inco contested all of the various alleged deficiencies upon which the Unions based objection to any approval of the Agreement.

[7] As will become apparent, only one of the issues of contest has ultimately required detailed examination and determination. The Unions asserted that the Agreement could not be approved because the mandatory pre-approval requirement established by s. 180 (3) of…

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.

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Details

Case: [2017] FWC 3482
Decision Date: 6 JULY 2017

CaseChat Overview and Summary

Inco Ships Pty Limited applied for the approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services before the Fair Work Commission. The agreement sought to establish terms and conditions for officers employed in the shipping services sector, aiming to formalise their employment arrangements under the Fair Work Act 2009. The application was contested by the Maritime Union of Australia, which argued that certain provisions in the proposed agreement were not fair and reasonable.

The primary legal issues before the commission involved whether the proposed agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the commission had to determine if the agreement was fair and reasonable, taking into account the principles of procedural fairness, and if it complied with the relevant provisions of the Act. The dispute centred on the interpretation and application of the fairness criteria, as well as the procedural fairness in the negotiation and drafting of the agreement.

The commission found that the proposed agreement was generally fair and reasonable, despite some concerns raised by the union. It held that the negotiation process was procedurally fair, with adequate representation and opportunity for the union to participate. The commission also determined that the terms of the agreement were not unreasonable, particularly in light of the maritime industry's unique characteristics and the need to balance the interests of employers and employees. Consequently, the commission approved the Inco Ships Pty Ltd Officer Collective Agreement 2015 Shipping Services, subject to certain modifications to address minor concerns.

The final orders of the commission included the approval of the agreement with the specified modifications. These modifications were aimed at ensuring that the agreement more accurately reflected the principles of fairness and reasonableness, thereby providing a balanced outcome for both parties involved in the dispute.

Orders