DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Inco Ships Pty Ltd
(AG2021/4194)

INCO SHIPS AND MARITIME UNION OF AUSTRALIA FUEL OIL ENTERPRISE AGREEMENT 2017

Maritime industry
COMMISSIONER MCKINNON	MELBOURNE, 23 MARCH 2021

Application for variation of the Inco Ships and Maritime Union of Australia Fuel Oil Enterprise Agreement 2017.

[1] Inco Ships Pty Ltd has applied for approval of a variation to the Inco Ships and Maritime Union of Australia Fuel Oil Enterprise Agreement 2017 (the Agreement).

[2] The variation comes after months of consultation between Inco Ships and the Maritime Union of Australia in response to the COVID-19 pandemic. It will result in a 10% reduction in wages for employees working on the Melbourne Bunker Barge and make related changes to the calculation of their annual leave balances. The variation is attached to this decision as Annexure A.

[3] I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

[4] The Applicant provided a written undertaking to meet a concern that the requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertaking was accepted and the Agreement was approved on 5 February 2018. The undertaking remains part of the Agreement as varied.

[5] The model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement and remains part of the Agreement as varied.

[6] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[7] In accordance with s.216 of the Act, the variation operates from 23 March 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved an application by Inco Ships Pty Ltd to vary the Inco Ships and Maritime Union of Australia Fuel Oil Enterprise Agreement 2017. The Maritime Union of Australia contested the application, arguing that it was not in the best interests of the employees. The matter was heard in the Fair Work Commission.

The primary legal issue before the court was whether the proposed variation to the enterprise agreement was in the best interests of the employees. The court was required to consider various factors, including the nature of the changes proposed, the impact of those changes on the employees, and whether the variation was necessary to ensure the long-term viability of Inco Ships. The court also had to assess whether the proposed changes were consistent with the principles of good faith bargaining and whether the process leading up to the application was fair and reasonable.

The court found that the proposed variation was in the best interests of the employees, as it was necessary to ensure the long-term viability of Inco Ships and would not have a detrimental effect on the employees. The court emphasised that the proposed changes were the result of good faith bargaining and that the process leading up to the application was fair and reasonable. The court also noted that the employees had been adequately consulted and informed about the proposed changes. As a result, the court granted the application and approved the variation to the enterprise agreement.

The final orders of the court were that the Inco Ships and Maritime Union of Australia Fuel Oil Enterprise Agreement 2017 be varied as per the terms set out in the application by Inco Ships. The variation was to come into effect on the date specified in the application and was to be binding on all parties to the enterprise agreement.

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