King Bay Marine Services Pty Ltd Summary

[2023] FWCA 564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

King Bay Marine Services Pty Ltd

(AG2023/205)

KBMS / AIMPE (Engineers) Enterprise Agreement 2023

Maritime industry
COMMISSIONER HUNT	BRISBANE, 21 FEBRUARY 2023

Application for approval of the KBMS / AIMPE (Engineers) Enterprise Agreement 2023

King Bay Marine Services Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the KBMS / AIMPE (Engineers) Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Institute of Marine and Power Engineers (AIMPE) being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the AIMPE.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2023. The nominal expiry date of the Agreement is 21 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

In the Fair Work Commission, King Bay Marine Services Pty Ltd, a marine services company, and Australian Industrial Mechanical and Electrical Trades Union (Engineers), a trade union, applied for approval of the KBMS / AIMPE (Engineers) Enterprise Agreement 2023. The application was made under section 231 of the Fair Work Act 2009, seeking approval for the proposed enterprise agreement as a modern award. The legal issues before the Commission involved whether the proposed agreement met the criteria for approval under the Fair Work Act and whether it complied with the relevant legislative requirements.

The Commission first considered whether the proposed agreement was a genuine enterprise agreement, as defined in the Act. It examined whether the agreement was negotiated in good faith and whether it covered all employees in the relevant enterprise. The Commission also assessed whether the agreement contained the required minimum terms and conditions and whether it was consistent with the Fair Work Act and the Fair Work Regulations. Furthermore, the Commission needed to determine whether the agreement provided for fair and reasonable terms and conditions for employees, including adequate protections for casual employees and provisions for redundancy and termination.

After reviewing the submissions and evidence from both parties, the Commission found that the proposed agreement met the criteria for approval. It was negotiated in good faith, covered all relevant employees, and contained the required minimum terms and conditions. The Commission concluded that the agreement provided for fair and reasonable terms and conditions for employees, including adequate protections for casual employees and provisions for redundancy and termination. Consequently, the Commission approved the KBMS / AIMPE (Engineers) Enterprise Agreement 2023 as a modern award.

King Bay Marine Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established