Remick Pty Ltd T/A Pro Dive Cairns

[2021] FWCA 759

[2021] FWCA 759

FAIR WORK COMMISSION

DECISION

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

Remick Pty Ltd T/A Pro Dive Cairns
(AG2020/699)

PRO DIVE CAIRNS ENTERPRISE AGREEMENT 2020

Diving services
DEPUTY PRESIDENT ASBURY	BRISBANE, 12 FEBRUARY 2021

Application for approval of the Pro Dive Cairns Enterprise Agreement 2020.

[1] Remick Pty Ltd T/A Pro Dive Cairns (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Pro Dive Cairns Enterprise Agreement 2020 (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] The Australian Maritime Officers’ Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) are bargaining representatives for the Agreement. The AMOU and CFMMEU appealed a decision initially approving the Agreement. In a decision issued on 7 October 2020 1, a Full Bench of the Commission quashed a decision approving the Agreement and remitted it to me to deal with, consistent with the reasons of the Full Bench in the appeal.

[3] I conducted a hearing on 21 January 2021 at which objections to the approval of the Agreement advanced by the AMOU and the CFMMEU were addressed. After considering the submissions and material tendered by the AMOU and the CFMMEU and the submissions of the Applicant I decided to approve the Agreement. A Decision setting out my reasons for deciding to approve the Agreement will issue in due course.

[4] Undertakings were provided by the Applicant in response to concerns the Commission held in relation to the operation of certain clauses and whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[5] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement in relation to the Undertakings were sought at the hearing and in subsequent correspondence. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s. 201(3) of the Act, a copy of the undertakings will be attached to the Agreement and forms part of the Agreement.

[6] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement, responses to requests for further information provided by the Applicant and submissions made at the hearing on 21 January 2021, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account ss.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[7] The AMOU and the CFMMEU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, and based on the declarations provided by the organisations, I note that the Agreement covers these organisations.

[8] The Agreement is approved in accordance with s.54 of the Act and will operate from 19 February 2021. The nominal expiry date of the Agreement is 12 February 2025.

DEPUTY PRESIDENT

Annexure A

 1   Australian Maritime Officers’ Union v Remick Pty Ltd t/a Pro Dive Cairns & Construction, Forestry, Maritime, Mining and Energy Union v Remick Pty Ltd t/a Pro Dive Cairns [2020] FWCFB 4856.

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