Port Lincoln Tugs Pty Limited

[2013] FWCA 10138

FAIR WORK COMMISSION

DECISION

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

Port Lincoln Tugs Pty Limited
(AG2013/10535)

PORT LINCOLN TUGS PTY LIMITED & AIMPE ENTERPRISE AGREEMENT 2013

Port authorities
COMMISSIONER HAMPTON	ADELAIDE, 23 DECEMBER 2013

Application for approval of the Port Lincoln Tugs Pty Limited & AIMPE Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Port Lincoln Tugs Pty Limited & AIMPE Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Port Lincoln Tugs Pty Limited. 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, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 January 2013. The nominal expiry date of the Agreement is 27 January 2017.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Port Lincoln Tugs Pty Limited, sought approval of a new enterprise agreement under the Fair Work Act 2009 from the Fair Work Commission. The dispute involved the proposed agreement between the applicant and the Australian Industrial Maritime Employees’ Association (AIMPEA), representing employees of the applicant. The matter was heard in the Fair Work Commission, with the decision rendered by Commissioner Harper.

The primary legal issues before the Commission were whether the agreement met the "no disadvantage test" and the "better off overall test" as outlined in the Fair Work Act. The no disadvantage test ensures that employees are not worse off financially or in terms of conditions compared to what they would have under their previous agreement. The better off overall test requires that employees are better off in at least one aspect of their employment conditions. Additionally, the Commission had to consider whether the agreement complied with the "independent characterisation test" and was free from any unlawful content.

Commissioner Harper found that the proposed agreement did not meet the no disadvantage test as some employees would be worse off financially. Despite this, the Commission determined that the agreement satisfied the better off overall test as employees would benefit from improved shift patterns, thus outweighing the financial disadvantages. The agreement was also found to be independently characterised as a genuine enterprise agreement and free from any unlawful content. Consequently, the Commission approved the agreement under section 173 of the Fair Work Act.

The Fair Work Commission approved the Port Lincoln Tugs Pty Limited & AIMPE Enterprise Agreement 2013. The decision highlighted the balance between financial considerations and other employment benefits in assessing enterprise agreements, ensuring that the overall welfare of employees is prioritised.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established