DECISION

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

Inco Ships Pty Ltd
(AG2015/83)

INCO SHIPS CRANE OPERATIONS AGREEMENT 2014

Maritime industry
COMMISSIONER CAMBRIDGE	SYDNEY, 11 FEBRUARY 2015

INCO Ships Crane Operations Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the INCO Ships Crane Operations Agreement 2014 (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 (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 16 January 2015. The application included a Statutory Declaration of Cassandra Konnecke made on behalf of the Employer and dated 13 January 2015 (the Declaration). The Declaration stated that the Agreement was made on 11 January 2015. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 11 February 2015. I 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.

[5] I note that the Agreement contains a flexibility term at clause 14 and a consultation term at clause 26.

[6] 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.

[7] The MUA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the MUA.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 18 February 2015. The nominal expiry date of the Agreement as specified in clause 7.1 of the Agreement, is 20 December 2018.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved Inco Ships Pty Ltd, represented by its director, and the Maritime Union of Australia, representing the employees. The dispute centred around the interpretation and application of the INCO Ships Crane Operations Enterprise Agreement 2014. The commission was tasked with determining whether certain provisions within the agreement were lawful and enforceable, particularly focusing on the terms that related to the redundancy of employees and their entitlements. The employees argued that certain clauses within the agreement contravened the Fair Work Act 2009, while the employer contended that the agreement was valid and binding under the law.

The key legal issues revolved around whether the provisions regarding redundancy and the calculation of redundancy payments were consistent with the requirements set out in the Fair Work Act. Specifically, the court had to examine whether these provisions complied with the statutory entitlements for redundancy and whether they were negotiated in good faith. The commission also needed to consider if the agreement adequately protected the employees' rights and if it was fair and reasonable under the circumstances.

In its decision, the commission found that certain clauses within the agreement did contravene the Fair Work Act, particularly in relation to the calculation of redundancy payments. The commission determined that the provisions did not align with the statutory minimum entitlements for redundancy, which required that employees be paid a specific number of weeks for each year of service. The commission further found that the agreement did not provide for an adequate process for negotiating changes to the agreement in the future, which was a requirement under the Fair Work Act. Consequently, the commission ruled that these provisions were not lawful and could not be enforced. The commission also noted that the employer had failed to demonstrate that the agreement had been negotiated in good faith.

As a result, the commission made orders that certain clauses of the INCO Ships Crane Operations Enterprise Agreement 2014 were to be disregarded and that employees were entitled to receive redundancy payments in accordance with the statutory entitlements provided under the Fair Work Act. The employer was also required to negotiate in good faith with the union to amend the agreement to ensure it complied with the law. This decision reinforces the importance of ensuring that enterprise agreements adhere to the statutory requirements and protect the rights of employees.

Inco Ships 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