Inco Ships Pty Ltd

[2024] FWCA 1920

[2024] FWCA 1920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.602A - application to validate the approval of an agreement

Inco Ships Pty Ltd

(AG2024/1776)

DEPUTY PRESIDENT COLMAN MELBOURNE, 27 MAY 2024

Application for validation of approval of an enterprise agreement

1. Inco Ships Pty Ltd (Inco Ships) has made an application pursuant to s 602A of the Fair Work Act 2009 (Act) for the Commission to make a determination in respect of the Inco Ships Pty Ltd and Maritime Union of Australia, Division of Construction Forestry Maritime Mining and Energy Union of Australia, Accolade II Ratings Enterprise Agreement 2023 (Agreement), which was approved by the Commission under s 185 of the Act on 17 October 2023 (see [2023] FWCA 3435). Inco Ships submits that when it made its application under s 185, it erroneously submitted a draft document (Draft Agreement) instead of the final agreement that was submitted to a vote and approved by employees (Final Agreement). The Draft Agreement differs from the Final Agreement in that it provides, at clause 3.2, that the NES redundancy provisions will apply, whereas the Final Agreement states: ‘Three weeks current pay per year of service, pro rata’.

1. Inco Ships asks the Commission to rectify this error in the manner contemplated by s 602A. The Construction, Forestry and Maritime Employees Union (CFMEU), which was a bargaining representative for the Agreement and is covered by it, has confirmed to the Commission that it supports the application.

1. Section 602A provides as follows:

“602A Validation of approval of enterprise agreement

(1)   If:

(a)   after an enterprise agreement was made:

(i)an application for the approval of a draft of the enterprise agreement was erroneously made to the FWC; and

(ii)the FWC approved the draft of the agreement; and

(b)   the FWC is satisfied that, assuming that the application had been an application for the approval of the enterprise agreement that was made, the FWC would have approved the enterprise agreement that was made;

the FWC may determine in writing that the approval is as valid and effective, and is taken to have been as valid and effective, as it would have been if:

(c)   the application had been an application for the approval of the enterprise agreement that was made instead of an application for the approval of the draft of the agreement; and

(d)   the requirements set out in subsection 185(2) or section 185A (whichever is applicable) had been met in relation to the application; and

(e)   the approval had been an approval of the enterprise agreement that was made instead of an approval of the draft of the agreement.”

1. I accept that the text of the Agreement reflects the Draft Agreement rather than the Final Agreement, and that Inco Ships mistakenly lodged the Draft Agreement in the Commission together with its s 185 application and supporting declaration, when it ought to have lodged the Final Agreement.

1. I am satisfied that, had Inco Ships’ application under s 185 been an application for the approval of the Final Agreement, I would have approved it; I would have been satisfied that all of the relevant requirements of ss 186 and 187 had been met, including that the agreement was genuinely agreed and that it passed the ‘better off overall’ test.

1. Pursuant to s 602A(1), I determine that the approval of the Agreement is as valid and effective, and is taken to have been as valid and effective, as it would have been if: the application under s 185 had been an application for the approval of the Final Agreement instead of an application for the approval of the Draft Agreement; the requirements of s 185(2) had been met; and the approval had been an approval of the Final Agreement instead of an approval of the Draft Agreement. As required by s 602A(3), the Final Agreement will be published on the Commission’s website.

DEPUTY PRESIDENT

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