DECISION

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

Jan De Nul (Australia) Pty Ltd
(AG2016/4930)

JAN DE NUL (AUSTRALIA) PTY LTD ENTERPRISE AGREEMENT 2016

Dredging industry
DEPUTY PRESIDENT BINET	PERTH, 23 DECEMBER 2016

Application for approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016.

[1] On 4 August 2016 Jan De Nul (Australia) Pty Ltd (Jan De Nul) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016 (Agreement).

[2] The Agreement is a single enterprise agreement.

[3] The Application was accompanied by a statutory declaration in support of the Application by Mr Paul Janssens, Project Director at Jan De Nul.

[4] On 18 August and 23 August 2016, respectively, the FWC received correspondence from the Australian Maritime Officers Union (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE), respectively, requesting that they be provided with a copy of the Jan De Nul Form F16 and Form F17 with a view to being heard as to the approval or otherwise of the Agreement by the FWC. Jan De Nul did not consent to providing the redacted Forms F16 and F17 to the AMOU and the AIMPE and opposed the AMOU or the AIMPE being granted leave to be heard in relation to the Proposed Agreement.

[5] The matter of the AMOU’s and AIMPE’s standing to be heard in relation to the Application was subsequently listing for Hearing on 4 November 2016. On 15 November 2016, a decision in relation to the AMOU’s and the AIMPE’s standing to be heard in relation to the Proposed Agreement was issued ([2016] FWC 7991; PR587253) which found that the AMOU has standing to be heard but that the AIMPE neither has standing to be heard nor had it established a basis upon which it should be invited to be heard.

[6] On 28 October 2016, a confidentiality order (PR586591) (Order) and accompanying decision ([2016] FWC 7528; PR586593) was issued in respect of the Application at the request of the Jan De Nul. The Order included orders that the personal identity and personal information of any individual employee bargaining representative(s) and/or any individual employee(s) produced, disclosed, named, revealed or referenced in this matter including, but not limited to, in any written document or in oral evidence shall be kept confidential (Confidential Material) and that the Confidential Material shall not be published or made available for inspection other than as provided for in the Confidentiality Order. In accordance with the Order, the Agreement is approved and issued with the signature page of the Agreement redacted.

[7] Jan De Nul has provided written undertakings (Undertakings) which address the concerns which I had in relation to the Better Off Overall Test. A copy of the Undertakings is attached at 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.

[8] Subject to the Undertakings referred to above, and on the basis of the materials before me, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 as are relevant to this Application for approval have been met.

[9] The Agreement was approved on 3 August 2016. The nominal expiry date of the Agreement is 4 years from the date of the approval by the FWC. In accordance with section 54 of the FW Act, the Agreement shall commence operation on 30 December 2016 and expire on 29 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The case involved Jan De Nul (Australia) Pty Ltd, and it related to the approval of the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016. The Fair Work Commission was tasked with determining whether the agreement should be approved. The dispute centred around the provisions of the agreement, which aimed to establish terms and conditions for employees within the company.

The primary legal issue the court had to address was whether the enterprise agreement complied with the requirements set forth in the Fair Work Act 2009. This included ensuring that the agreement met the criteria for being a "simple" agreement, which required it to be free from certain complex provisions and to adhere to specific procedural rules. Additionally, the court had to examine whether the agreement was made in good faith and whether it provided for fair and reasonable terms and conditions of employment.

The court determined that the agreement satisfied all the necessary criteria for approval. It found that the agreement was indeed a "simple" agreement, as it did not contain any of the prohibited provisions and had followed the correct procedural steps. Furthermore, the court was satisfied that the agreement was made in good faith and provided for fair and reasonable terms and conditions of employment. Consequently, the court approved the Jan De Nul (Australia) Pty Ltd Enterprise Agreement 2016. The approval was granted on the condition that the agreement would come into effect from the date of the decision, and the parties were directed to take all necessary steps to give effect to the agreement.

Jan De Nul (Australia) 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