DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port Lincoln Tugs Pty Ltd
(AG2019/870)

PORT LINCOLN TUGS PTY LTD AND AIMPE ENTERPRISE AGREEMENT 2019

Maritime industry
COMMISSIONER PLATT	ADELAIDE, 2 MAY 2019

Application for approval of the Port Lincoln Tugs Pty Ltd and AIMPE Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Port Lincoln Tugs Pty Ltd and AIMPE Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Port Lincoln Tugs Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 April 2019.

[3] On 17 April 2019, 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 the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 2 May 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Despite clause 11.1.3 of the Agreement, probationary employees will be entitled to notice under the NES.

• Clause 19 (Cashing out of Annual Leave) of the Agreement will operate subject to the protections contained in the undertaking.

• Clause 22.4 of the Agreement shall no longer apply.

• The public holidays contained in clause 24.2 of the Agreement will include those Gazetted by the South Australian Government.

• The rates of pay for casual employees shall be either the “day rate” contained in clause 11.4.2 of the Agreement or the “Per Job Amount” in Schedule B Allowances, whichever is the greater.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] 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.

[7] 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.

[8] 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 this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 27 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Port Lincoln Tugs Pty Ltd recently had an application for the approval of the Port Lincoln Tugs Pty Ltd and AIMPE Enterprise Agreement 2019 heard by the Fair Work Commission. The applicant, Port Lincoln Tugs Pty Ltd, sought approval of the enterprise agreement that had been negotiated with the Australian Industrial Maritime Employees’ Association (AIMPE). The dispute centred on whether the agreement complied with the necessary provisions of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement met the requirements for registration under section 232 of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for minimum terms and conditions, did not unfairly discriminate, and was free from prohibited content. The Commission also had to consider whether the agreement complied with the mandatory provisions of the Fair Work Act, including those relating to pay rates, penalties for breaches, and the right to request flexible working arrangements.

In its decision, the Commission found that the agreement was fair and reasonable, and therefore met the criteria for approval. The Commission noted that the agreement provided for minimum terms and conditions, did not unfairly discriminate, and contained no prohibited content. The Commission also found that the agreement complied with the mandatory provisions of the Fair Work Act, including those relating to pay rates, penalties for breaches, and the right to request flexible working arrangements. The Commission was satisfied that the agreement provided for a fair and reasonable outcome for both parties.

The Fair Work Commission approved the enterprise agreement between Port Lincoln Tugs Pty Ltd and AIMPE, subject to certain conditions. The agreement will now apply to the employees of Port Lincoln Tugs Pty Ltd who are members of AIMPE. The approval of the agreement will provide certainty and stability for both the employer and employees, and will ensure that they are protected by the minimum terms and conditions set out in the agreement.

Port Lincoln Tugs 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