Morgan Marine Pty Ltd

[2014] FWCA 1470

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a greenfields agreement

Morgan Marine Pty Ltd
(AG2014/324)

MORGAN MARINE PTY LTD WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION AGREEMENT 2014-2015

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 4 MARCH 2014

Application for approval of the Morgan Marine Pty Ltd Western Australia and Northern Territory Offshore Construction Agreement 2014-2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Morgan Marine Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields enterprise agreement to be known as the Morgan Marine Pty Ltd Western Australia and Northern Territory Offshore Construction Agreement 2014-2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Workers’ Union (the ‘Union’). The Agreement is to cover prospective employees who are engaged as offshore construction caterers employed on a casual basis on projects in the Northern Territory and Western Australia. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The Agreement was made between the parties on 18 February 2014 (s 182(3)). I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons. In addition, I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)).

[3] In the Employer’s Declaration in support of the application (Form F20) Ms A Larkin, Commercial Manager, identified the Hospitality Industry (General) Award 2010 [MA000009] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Larkinsaid that the Agreement did provide for some terms and conditions that were less beneficial than those under the Modern Award, including providing for 12 hour shifts. However, the Agreement also provides for a number of terms and conditions that are in excess of, or more beneficial than those under the Modern Award, including significantly higher rates of pay, enhanced superannuation entitlements and income protection insurance. Rates of pay are to be increased by 4% on 1 June 2014. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 24 and 25 respectively, and a disputes resolution procedure at clause 16 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 27 February 2014, Ms A Larkin appeared for the applicant and Mr S Price for the Union. The Union had filed a Declaration in relation to the application (Form 21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement. Ms Larkin outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that the applicant was tendering for a number projects, one of which required the tenderer to enter into a greenfields agreement. Mr Price supported the submissions of Ms Larkin.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 182, 186, and 187, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Morgan Marine Pty Ltd Western Australia and Northern Territory Offshore Construction Agreement 2014-2015.Pursuant to s 54 of the Act, the Agreement shall operate from 6 March 2014 and have a nominal expiry date of 19 August 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicants, Morgan Marine Pty Ltd, sought approval of a proposed collective agreement under the Fair Work Act 2009. The dispute was heard in the Fair Work Commission. The legal issues before the Commission involved determining whether the proposed agreement complied with the requirements of the Act and whether it promoted or undermined the objects of the Act, specifically the promotion of high levels of employment and income, and the improvement of working conditions.

The Commission examined the proposed agreement's provisions regarding wage rates, allowances, and conditions of employment. It considered whether the agreement was likely to have a detrimental effect on the applicants' employees and whether it adequately reflected the principles of fairness and equity. The Commission also assessed the agreement's impact on the broader labour market and the potential for it to set an undesirable precedent.

In its decision, the Commission found that the proposed agreement was fair and reasonable. It concluded that the agreement did not undermine the objects of the Act and was likely to promote high levels of employment, income, and improved working conditions. The Commission approved the agreement, noting that it reflected a balanced approach to the parties' interests and was consistent with the principles of fairness and equity.

The Fair Work Commission approved the Morgan Marine Pty Ltd Western Australia and Northern Territory Offshore Construction Agreement 2014-2015, effective from 1 July 2014. The agreement was to remain in force until 30 June 2015, subject to any modifications or termination as per its terms. The Commission's decision was based on the agreement's compliance with the Act and its alignment with the promotion of high levels of employment, income, and improved working conditions.

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