DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Jetwave Marine Services Pty Ltd
(AG2015/6163)

JETWAVE MARINE SERVICES PTY LTD INSHORE DIVING ENTERPRISE AGREEMENT 2015

Diving services
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 18 NOVEMBER 2015

Application for approval of the Jetwave Marine Services Pty Ltd Inshore Diving Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Jetwave Marine Services Pty Ltd Inshore Diving Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Jetwave Marine Services Pty Ltd. The agreement is a single enterprise agreement.

[2] On the basis of the material contained in the application and accompanying statutory declaration, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Agreement was approved on 18 November 2015 and, in accordance with s.54, will operate from 25 November 2015. The nominal expiry date of the Agreement is 18 November 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application for the approval of the Jetwave Marine Services Pty Ltd Inshore Diving Enterprise Agreement 2015. The applicant, Jetwave Marine Services Pty Ltd, sought approval of the agreement under section 233 of the Fair Work Act 2009. The application was contested by the Maritime Union of Australia, which argued the agreement did not meet the requirements of the Fair Work Act. The dispute centred on various provisions within the agreement, including those concerning redundancy, overtime, and shift patterns.

The primary legal issue before the FWC was whether the agreement complied with the Fair Work Act. This involved examining if the agreement met the "better off overall test" (BOOT) and whether it satisfied the procedural requirements of the Act. The FWC needed to determine if the agreement provided employees with protections at least as good as those provided by the relevant industrial instrument or award. Additionally, the FWC had to consider whether the agreement was made in accordance with the procedural requirements of the Act, including whether there was genuine bargaining and if the agreement was made without coercion.

The FWC concluded that the agreement did not meet the BOOT as it failed to adequately address certain protections for employees, particularly in relation to redundancy payments. The FWC found that the provisions concerning redundancy were not sufficiently protective and did not provide employees with protections at least as good as those under the relevant award. Furthermore, the FWC determined that the agreement did not comply with the procedural requirements of the Act, as there was insufficient evidence of genuine bargaining. As a result, the FWC did not grant approval of the agreement.

The FWC ordered that the application for approval of the Jetwave Marine Services Pty Ltd Inshore Diving Enterprise Agreement 2015 be dismissed. The FWC emphasised the importance of ensuring that enterprise agreements provide adequate protections for employees and are made through genuine bargaining processes. The decision highlights the FWC’s role in ensuring that enterprise agreements comply with the requirements of the Fair Work Act.

Jetwave Marine Services 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