King Bay Marine Services Summary

[2023] FWCA 577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

King Bay Marine Services

(AG2023/207)

KBMS/AMOU & MUA (Masters & General Purpose Hands) Enterprise Agreement 2023

Maritime industry
COMMISSIONER HUNT	BRISBANE, 22 FEBRUARY 2023

Application for approval of the KBMS/AMOU & MUA (Masters & General Purpose Hands) Enterprise Agreement 2023

King Bay Marine Services (the Employer) has applied for approval of an enterprise agreement known as the KBMS/AMOU & MUA (Masters & General Purpose Hands) 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. The Australian Maritime Officers’ Union (AMOU) confirmed that it agreed with the undertakings given by the Employer. The Maritime Union of Australia, a division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) did not provide any views.

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 AMOU and the MUA, being bargaining representatives for the Agreement have 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 AMOU and the MUA.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 March 2023. The nominal expiry date of the Agreement is 22 February 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

The case involved King Bay Marine Services, which sought approval of a new enterprise agreement for its masters and general purpose hands. The application was brought before the Fair Work Commission, where the parties contested whether the proposed agreement met the necessary criteria for approval. The Commission had to decide if the agreement complied with the relevant provisions of the Fair Work Act 2009, particularly focusing on the requirements for good faith bargaining, the nature of the agreement, and its compliance with the "better off overall test."

The central legal issues before the Commission were whether the proposed agreement was genuinely negotiated in good faith and whether it provided terms and conditions that were at least as favourable as those provided under the previous agreement. The Commission also had to consider whether the agreement included terms that were not genuinely related to employment, which could render it invalid. Additionally, the Commission needed to determine if the agreement met the "better off overall test" by providing a balance of benefits and detriments that was at least as good as, or better than, the previous agreement.

In reaching its decision, the Commission considered the evidence provided by both parties and assessed the negotiation process. The Commission found that the agreement was genuinely negotiated in good faith and that it contained terms that were genuinely related to employment. The Commission also found that the proposed agreement met the "better off overall test." Based on these findings, the Commission approved the application for the KBMS/AMOU & MUA (Masters & General Purpose Hands) Enterprise Agreement 2023.

The Commission made an order approving the application for the enterprise agreement, effective from the date of the decision. The new agreement was to replace the previous agreement and would apply to the relevant employees, governing their terms and conditions of employment. The order was made under the authority of the Fair Work Act 2009, ensuring that the agreement complied with all relevant legal requirements.

King Bay Marine Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established