Maritime Container Services Pty Ltd T/A Maritime Container Services

[2023] FWCA 2099

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Maritime Container Services Pty Ltd T/A Maritime Container Services

(AG2023/2006)

MARITIME CONTAINER SERVICES AND THE TRANSPORT WORKERS UNION ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT SLEVIN	SYDNEY, 7 JULY 2023

Application for approval of the Maritime Container Services and The Transport Workers Union Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Maritime Container Services and The Transport Workers Union Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Maritime Container Services Pty Ltd. The Agreement is a single enterprise agreement.

I raised concerns with the applicant that clause 34.1(d) which limits the amount referred to in clause 17.2(e) to no more than 1 week’s wages may be read so as to operate in a manner inconsistent with the National Employment Standards (NES). Clause 17.2(e) sets out circumstances where an employer may deduct from money due to the employee under the NES upon termination, if an employee fails to give the required period of notice. I was also concerned that the Agreement mentioned apprentices at clause 17 (j) but did not provide for rates of pay for apprentices.

In response the Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. A copy of the undertakings were provided to all bargaining representatives. No objection was raised. 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.201(3), the undertakings are taken to be a term of the Agreement.

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 the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Transport Workers’ Union of NSW 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) I note that the Agreement covers the organisation.
The Agreement was approved on 7 July 2023 and, in accordance with s.54, will operate from 14 July 2023. The nominal expiry date at clause 3.3 of the Agreement is 14 July 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Maritime Container Services Pty Ltd, trading as Maritime Container Services, sought approval for an enterprise agreement with The Transport Workers Union. The dispute arose from negotiations between the employer and the union, leading to an application for the agreement's approval. The Commission was tasked with determining whether the agreement complied with the relevant legislative provisions and whether it should be certified as a registered agreement.

The primary legal issues before the Commission were whether the agreement met the statutory requirements for approval and if it was in the best interests of the employees. The Commission considered whether the agreement provided for a fair and reasonable level of employee protection, including minimum terms and conditions of employment, and whether it was made in good faith. The Commission also examined if the agreement was consistent with the principles of the Fair Work Act 2009.

The Commission found that the agreement was made in good faith and was consistent with the principles of the Act. It was noted that the agreement provided for a fair and reasonable level of employee protection, including minimum terms and conditions of employment. The Commission was satisfied that the agreement complied with the statutory requirements for approval. After considering all the relevant factors, the Commission approved the agreement and certified it as a registered agreement. The employer and the union were directed to take all necessary steps to give effect to the agreement.

No further orders were made by the Commission. The approved agreement was to take effect from the date of the Commission's decision and would remain in force until the earlier of the parties agreeing to vary it or the agreement being terminated under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established