National Maritime Services Pty Ltd Summary

[2013] FWCA 5245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

National Maritime Services Pty Ltd
(AG2013/7518)

NATIONAL MARITIME SERVICES LAUNCH AND MOORING OPERATIONS - KURNELL ENTERPRISE AGREEMENT 2012

Maritime industry
COMMISSIONER CAMBRIDGE	SYDNEY, 31 JULY 2013

Application for approval of the National Maritime Services Launch and Mooring Operations - Kurnell Enterprise Agreement 2012.

[1] An application has been made for approval of an enterprise agreement known as the National Maritime Services Launch and Mooring Operations - Kurnell Enterprise Agreement 2012 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by National Maritime Services Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 12 July 2013. The application included a Statutory Declaration of Jeff McClenaughan made on behalf of the Employer and dated 8 July 2013, (the Declaration). The Declaration stated that the Agreement was made on 24 June 2013. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the application was made 4 days after the 14 day period, and an explanation for the late lodgement has subsequently been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application included Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings). Consequently I have further considered the application for approval having regard for the Undertakings.

[5] The application for approval was listed for Hearing in Chambers before the Commission on 31 July 2013. I note that the file has included a Statutory Declaration of Adam Jacka made on behalf of the Maritime Union of Australia (the MUA), as an employee organisation in relation to the application.

[6] I note that the Agreement contains a flexibility term in the Undertakings and a consultation term at clause 8.

[7] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[8] The MUA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the MUA.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 7 August 2013. The nominal expiry date of the Agreement as specified in clause 2.2 of the Agreement, is 30 June 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of the Fair Work Act 2009, the applicant, National Maritime Services Pty Ltd, sought approval of the National Maritime Services Launch and Mooring Operations - Kurnell Enterprise Agreement 2012. The application was heard by the Fair Work Commission in Australia. The applicant, a company operating in the maritime industry, sought to have the proposed enterprise agreement approved under the Fair Work Act, which regulates workplace relations and employment conditions in Australia.

The primary legal issue before the Commission was whether the proposed enterprise agreement complied with the statutory requirements of the Fair Work Act. This included assessing whether the agreement provided for minimum terms and conditions of employment, covered the appropriate bargaining unit, and had been negotiated in good faith. The Commission also considered whether the agreement provided for the proper representation of employees, including whether the applicant had taken reasonable steps to ensure that the agreement was understood and supported by the employees.

The Fair Work Commission found that the proposed enterprise agreement complied with the statutory requirements of the Fair Work Act. The Commission was satisfied that the agreement provided for the minimum terms and conditions of employment, covered the appropriate bargaining unit, and had been negotiated in good faith. The Commission also found that the applicant had taken reasonable steps to ensure that the agreement was understood and supported by the employees. As a result, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the National Maritime Services Launch and Mooring Operations - Kurnell Enterprise Agreement 2012, effective from 1 July 2012. The applicant was directed to take all necessary steps to give effect to the approved agreement, including providing copies of the agreement to the employees and the Fair Work Ombudsman. The approval of the enterprise agreement ensures that the employees of the applicant will have a legally binding agreement that sets out their terms and conditions of employment.

National Maritime Services Pty Ltd

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Background to the litigation

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