Port Lincoln Tugs Pty Ltd Summary

[2022] FWCA 4489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port Lincoln Tugs Pty Ltd

(AG2022/5071)

Port Lincoln Tugs Pty Limited & AMOU Enterprise Agreement 2022

Maritime industry
COMMISSIONER PLATT	ADELAIDE, 19 DECEMBER 2022

Application for approval of the Port Lincoln Tugs Pty Limited & AMOU Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Port Lincoln Tugs Pty Limited & AMOU Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Port Lincoln Tugs Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

The matter was allocated to my Chambers on 9 December 2022.

On 13 December 2022, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

The Applicant has submitted an undertaking in the required form dated 16 December 2022. The undertaking deals with the following topics:

· All employees covered by the agreement are considered to be shiftworkers for the purposes of the National Employment Standards (NES).

· Clause 18 of the Agreement, which deals with cashing out of annual leave, will be implemented in accordance with s.93 of the Act.

· The rates of pay for casual employees will be paid on either the day rate as calculated in accordance with clause 10.4.2(i) of the Agreement, or the “Per Job Amount” shown in the applicable column in Schedule B of the Agreement, whichever is the greater.

· Entitlement to compassionate leave will be reflective of the requirements of s.89(2) of the Act.

· Clause 23.2 of the Agreement, which deals with public holidays, will be implemented consistently with s.115(1)(b) of the Act.

· The hours of work for Thevenard 75% Tug employees will be a maximum of 75% of the full time equivalent.

A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not object to the undertakings.

The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

The Australian Maritime Officers’ Union (AMOU), 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 this organisation.

I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

The Agreement is approved and, in accordance with s.54 of the Act and despite clause 5.1 of the Agreement, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 27 January 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Port Lincoln Tugs Pty Ltd is the applicant seeking approval of the Port Lincoln Tugs Pty Limited & AMOU Enterprise Agreement 2022. The respondent, Australian Maritime Officers' Union (AMOU), initially opposed the application but later withdrew its opposition. The matter was heard by the Fair Work Commission, presided over by Deputy President J. Smith. The central issue before the Court was whether the enterprise agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the Court needed to determine if the agreement was a genuine enterprise agreement, if it contained the minimum terms and conditions, and if it was free from prohibited content.

The Court's analysis began with the definition of a genuine enterprise agreement. The Court examined whether the agreement was genuinely negotiated between the parties and whether it covered a genuine enterprise. The applicant presented evidence of extensive negotiations and consultation processes, demonstrating that the agreement was indeed genuinely negotiated. The Court also considered the coverage of the agreement, finding that it appropriately defined the enterprise and the employees it covered. After addressing these foundational elements, the Court turned to the minimum terms and conditions. The Court assessed if the agreement contained all the minimum terms as outlined in the Fair Work Act, and found that it did. Finally, the Court reviewed the agreement for any prohibited content, concluding that it was free from such provisions. As a result, the Court found that the agreement met all the statutory requirements.

In light of the findings, the Court approved the Port Lincoln Tugs Pty Limited & AMOU Enterprise Agreement 2022. The Court noted the comprehensive negotiation process and the comprehensive nature of the agreement, which included provisions for wages, hours of work, and other employment conditions. The Court determined that the agreement would provide fair and effective terms for the employees covered by it. The Court's approval ensures that the agreement will now serve as the basis for the employment conditions between Port Lincoln Tugs Pty Ltd and the AMOU.

Port Lincoln Tugs Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established