Inco Ships Pty Limited
[2023] FWCA 2494
•10 AUGUST 2023
| [2023] FWCA 2494 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Inco Ships Pty Limited
(AG2023/2552)
INCO SHIPS AND MARITIME UNION OF AUSTRALIA, DIVISION OF CONSTRUCTION FORESTRY MARITIME MINING AND ENERGY, SYDNEY FUEL OIL ENTERPRISE AGREEMENT 2022
| Maritime industry | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 10 AUGUST 2023 |
Application for approval of the Inco Ships and Maritime Union of Australia, Division of Construction Forestry Maritime Mining and Energy, Sydney Fuel Oil Enterprise Agreement 2022.
An application has been made for approval of an enterprise agreement known as the Inco Ships and Maritime Union of Australia, Division of Construction Forestry Maritime Mining and Energy, Sydney Fuel Oil Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Inco Ships Pty Limited. The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17B provides that the notification time for the Agreement was 1 April 2022.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 28.2 of the Form F17B provides that the Agreement was made on 18 July 2023.
The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.
Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.
I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 1.3.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
The Form F17B provides that the notification time for the Agreement was 1 April 2022 and the notice of employee representational rights (NERR) was re-issued on 6 July 2023, as the employer was unable to locate an earlier NERR provided to employees. It is unclear whether the NERR was issued within 14 days of the notification time per s. 173(3) of the Act. Additionally, as the vote occurred and the Agreement was made on 18 July 2023, the Agreement was not made at least 21 days after the last notice was given as required by s. 181(2) of the Act. I am satisfied that in all of the circumstances and having regard to the Full Bench decision in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[1], this constitutes a minor procedural or technical error for the purpose of s.188(2)(a) of the Act as it was prior to 6 June 2023. Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.
The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 August 2023. The nominal expiry date of the Agreement is 9 August 2027.
DEPUTY PRESIDENT
Annexure A
[1] [2019] FWCFB 318.
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