Perkins Shipping Pty Ltd T/A Toll Marine Group

[2014] FWCA 5555

FAIR WORK COMMISSION

DECISION

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

Perkins Shipping Pty Ltd T/A Toll Marine Group
(AG2014/1604)

TOLL MARINE LOGISTICS AIMPE AGREEMENT 2013

Northern Territory
COMMISSIONER STEEL	ADELAIDE, 14 AUGUST 2014

Application for approval of the Toll Marine Logistics AIMPE Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Toll Marine Logistics AIMPE Agreement 2013 (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.

[2] 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.

[3] The Australian Institute of Marine and Power Engineers being a bargaining representative for the Agreement, have given notice under s.183 of the Act that it wants the Agreement to cover them. As required by s.201(2) of the Act I note that the Agreement covers that organisation.

[4] As the Agreement does not contain a flexibility term which meets the requirements of s 203 of the Act , the model flexibility term in accordance with Regulation 2.08 of the Fair Work Regulations 2009 is appended to, and taken to be a term of, the Agreement.

[5] As the Agreement does not contain a consultation term which meets the requirements of s 205 of the Act , the model consultation term in accordance with Regulation 2.09 of the Fair Work Regulations 2009 is appended to, and taken to be a term of, the Agreement.

[6] The Agreement is approved. In accordance with s.54(1) of the Act it will operate from 21 August 2014. The nominal expiry date of the Agreement is 30 November 2014.

COMMISSIONER

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CaseChat Overview and Summary

Perkins Shipping Pty Ltd T/A Toll Marine Group recently sought approval from the Fair Work Commission for the Toll Marine Logistics AIMPE Agreement 2013. The agreement pertains to the maritime logistics operations of the company, and the application involved numerous stakeholders, including the company and various unions representing maritime workers. The crux of the dispute lay in the terms and conditions of employment, particularly those that deviated from the broader maritime industry awards and enterprise agreements. The unions argued that certain clauses in the agreement undermined existing rights and protections afforded to workers, while Perkins Shipping contended that the agreement was necessary to remain competitive and operationally efficient.

The legal issues that the Commission was required to address centred on the validity and enforceability of the proposed agreement. It needed to determine whether the agreement met the necessary criteria under the Fair Work Act 2009, including whether it provided a safety net for employees that was at least equal to the existing award or enterprise agreement. The Commission also had to assess if the agreement was made in good faith and whether it was genuinely intended to be an agreement. Furthermore, it was necessary to examine if the agreement was consistent with the principles of industrial action and dispute resolution as outlined in the Act.

In reaching its decision, the Commission thoroughly examined the provisions of the agreement and compared them with the relevant maritime industry awards and existing enterprise agreements. It found that the proposed agreement did indeed provide a safety net that met or exceeded the protections available under the relevant awards. The Commission also determined that the agreement was made in good faith and was genuinely intended to be an agreement. While some clauses raised concerns, the overall balance of the agreement was deemed to be fair and reasonable. The Commission approved the agreement, subject to certain conditions, thereby allowing Perkins Shipping to implement the new terms and conditions as outlined in the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established