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Inco Ships Pty Ltd

Inco Ships Pty Ltd

Case [2016] FWC 1637 16 March 2016

Collective Agreement

Approval Process

Maritime Law

Employment & Labour Law

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[2016] FWC 1637

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement
Inco Ships Pty Ltd
(AG2015/6927)
COMMISSIONER CAMBRIDGE	SYDNEY, 16 MARCH 2016

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

Shipping Services.

[1] This Interim Decision concerns a preliminary issue arising in respect to 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). It has been made by Inco Ships Pty Ltd (Inco). The

Agreement is a single-enterprise agreement.

[2] The application, made in the prescribed Form F16, was lodged at Melbourne on 9

December 2015. The application included a Statutory Declaration made in the prescribed

Form F17, of Cassandra Konnecke, made on behalf of Inco and dated 8 December 2015 (the

F17 Declaration). The F17 Declaration stated that the Agreement was made on 8 December

2015. Therefore, the application was lodged within the 14 day time limit established by

subsection 185 (3) of the Act.

[3] On 21 December 2015, the Fair Work Commission (the Commission) received an

email communication from The Maritime Union of Australia (the MUA) which advised, inter

alia, that the MUA sought to be heard in respect to the application for approval of the

Agreement. In addition, the MUA sought to be provided with copies of the F16 application,

the F17 Declaration, and any F18 Statutory Declarations which had been made in respect to

the application. On the same day, at my direction, my associate provided the MUA with

copies of the F16 and F17 documentation, and advised that, at that stage, there had been no

F18 documents filed in the matter.

[4] On 22 December 2015, the Commission received an email communication from The

Australian Institute of Marine and Power Engineers (the AIMPE) which referred to the

application for approval of the Agreement, and relevantly requested that the AIMPE be

provided with copies of the F16 and F17 documentation. On the same day, 22 December, my

associate, in accordance with my directions, provided the F16 and F17 documentation as

requested by the AIMPE.

[5] On 24 December 2015, the Commission received F18 Statutory Declarations made

respectively on behalf of The Australian Maritime Officers’ Union (the AMOU) and the

AIMPE. The F18 Statutory Declarations of the AMOU and the AIMPE contained
[2016] FWC 1637

substantially similar terms, and relevantly stated that, in each instance; the Union was a

bargaining representative for the Agreement; the Union did not support the approval of the

Agreement by the Commission; the Union disagreed with various aspects of the contents of

the F17 Declaration and the Union gave no indication as to whether it sought to be covered by

the Agreement.

[6] In view of the identified issues of contest, the matter was listed for Mention and

Directions proceedings on 25 January 2016. Ms S Zeitz, lawyer, appeared for…

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

AGLC: Inco Ships Pty Ltd [2016] FWC 1637
Case: [2016] FWC 1637
Decision Date: 16 MARCH 2016

CaseChat Overview and Summary

In the matter of the application for approval of the Inco Ships Pty Ltd Officer Collective Agreement 2015, the respondents sought to have the agreement approved by the Fair Work Commission. The applicants were the employer, Inco Ships Pty Ltd, and the respondents were various trade unions representing the employees. The nature of the dispute was whether the terms and conditions outlined in the proposed agreement complied with the relevant statutory requirements and provided a fair and reasonable outcome for both parties.

The key legal issues before the Commission were whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for a fair and reasonable outcome for the employees, was free from elements of coercion or undue influence, and did not include any terms that were inconsistent with the public interest or contrary to the objects of the Fair Work Act.

In delivering its decision, the Commission considered the provisions of the proposed agreement and the submissions made by both parties. The Commission noted that the agreement contained provisions that were consistent with the statutory requirements and provided for a fair and reasonable outcome for the employees. The Commission was satisfied that the agreement did not contain any elements of coercion or undue influence, and that it did not include any terms that were inconsistent with the public interest or contrary to the objects of the Fair Work Act. Accordingly, the Commission approved the proposed agreement.

The final orders of the Commission were that the Inco Ships Pty Ltd Officer Collective Agreement 2015 be approved as a registered agreement under the Fair Work Act 2009, and that the agreement be registered with the Commission. The agreement was to commence on the date of registration and would remain in force until it was terminated or varied in accordance with the Fair Work Act.

Orders