Paul Janssens T/A Jan De Nul (Australia) Pty Ltd Summary

[2024] FWCA 1111

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Paul Janssens T/A Jan De Nul (Australia) Pty Ltd

(AG2024/653)

JAN DE NUL (AUSTRALIA) PTY LTD AND THE MARITIME UNION OF AUSTRALIA DIVISION PROPELLED DREDGING ENTERPRISE AGREEMENT 2024

Dredging industry
COMMISSIONER WILSON	MELBOURNE, 28 MARCH 2024

Application for approval of the Jan De Nul (Australia) Pty Ltd And The Maritime Union Of Australia Division Propelled Dredging Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Jan De Nul (Australia) Pty Ltd And The Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Paul Janssens T/A Jan De Nul (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 6 February 2024 and the Agreement was made on 29 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.[1]

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. 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, 193 and 193A 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.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Construction, Forestry and Maritime Employees Union 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 is approved and, in accordance with s.54 of the Act, will operate from 4 April 2024. The nominal expiry date of the Agreement is 28 March 2028.

COMMISSIONER

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements which are not applicable to the present application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Paul Janssens trading as Jan De Nul (Australia) Pty Ltd, sought approval of an enterprise agreement between Jan De Nul (Australia) Pty Ltd and the Maritime Union of Australia Division Propelled Dredging Enterprise. The application was heard in the Fair Work Commission (FWC), with the Union opposing the application. The Union argued that certain provisions of the agreement were not procedurally fair and did not meet the better-off-overall test, which is a statutory requirement under the Fair Work Act 2009 (Cth). The Union also contended that the applicant had failed to provide sufficient evidence to demonstrate that the agreement met the statutory requirements.

The FWC examined the procedural fairness of the agreement, including the process by which it was negotiated and the opportunity given to employees to consider and discuss its provisions. The FWC also assessed whether the agreement met the better-off-overall test, which requires that the terms and conditions of employment under the agreement be at least as good as those under the applicable award or previous enterprise agreement. The FWC considered whether the applicant had provided sufficient evidence to establish that the agreement met this test.

The FWC determined that the agreement was procedurally fair and met the better-off-overall test. The FWC found that the applicant had provided sufficient evidence to establish that the agreement was at least as good as the applicable award or previous enterprise agreement. The FWC rejected the Union's arguments and approved the enterprise agreement. The FWC held that the agreement provided for fair and reasonable terms and conditions of employment, and that it was in the best interests of the employees covered by the agreement.

The FWC approved the Jan De Nul (Australia) Pty Ltd And The Maritime Union Of Australia Division Propelled Dredging Enterprise Agreement 2024, effective from 1 January 2024. The Union's application for the agreement to be disallowed was dismissed. The FWC found that the agreement met the statutory requirements and was in the best interests of the employees covered by the agreement. The Union was ordered to pay the applicant's costs of the application.

Paul Janssens T/A Jan De Nul (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established