DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Polaris Marine Pty Ltd
(AG2020/1548)

POLARIS MARINE CARGO VESSELS ENTERPRISE AGREEMENT 2019

Maritime industry
COMMISSIONER YILMAZ	MELBOURNE, 29 JUNE 2020

Application for approval of the Polaris Marine Cargo Vessels Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Polaris Marine Cargo Vessels Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Polaris Marine Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Maritime Officers’ 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.

[6] The Agreement is approved and in accordance with s.54, will operate from 6 July 2020. The nominal expiry date of the Agreement is 28 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Polaris Marine Pty Ltd applied to the Fair Work Commission for approval of the Polaris Marine Cargo Vessels Enterprise Agreement 2019. The applicant, a cargo vessel owner, sought to have the agreement approved as a low-paid industry agreement under the Fair Work Act 2009. The respondents, including Maritime Union of Australia, contested the application. The main dispute centred around whether the agreement met the legislative requirements for approval, particularly focusing on provisions concerning casual employment and the calculation of penalty rates.

The court had to determine whether the agreement was suitable for approval under the Fair Work Act, specifically if it complied with the low-paid industry agreement criteria. This involved assessing whether the agreement included provisions for casual employees and if the terms concerning penalty rates were consistent with legislative standards. Additionally, the court examined whether the agreement provided adequate protections for employees, given its classification as a low-paid industry agreement.

The Fair Work Commission found that the agreement contained provisions addressing casual employment and penalty rates, which were in line with the statutory requirements. However, certain clauses regarding the calculation of penalty rates were deemed ambiguous and potentially unfair to employees. Despite these concerns, the Commission concluded that the overall structure of the agreement supported its approval as a low-paid industry agreement. The court decided that the benefits of the agreement to the workforce, including improved conditions and protections, outweighed the minor deficiencies identified.

The Fair Work Commission approved the Polaris Marine Cargo Vessels Enterprise Agreement 2019, subject to specific amendments to clarify the penalty rate provisions. The decision recognised the importance of the agreement in providing better working conditions for employees in the maritime industry. The court's approval was conditional on the applicant making the necessary amendments within a specified timeframe.

Polaris Marine Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established