RND Crewing Pty Ltd

[2023] FWCA 1384

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RND Crewing Pty Ltd

(AG2023/998)

APPLICATION FOR APPROVAL OF THE RND CREWING PTY LTD AGREEMENT 2023

Dredging industry
COMMISSIONER JOHNS	MELBOURNE, 15 MAY 2023

Application for approval of the RND Crewing Pty Ltd Agreement 2023

An application has been made for approval of an enterprise agreement known as the RND CREWING PTY LTD AGREEMENT 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by RND Crewing Pty Ltd. The Agreement is a single enterprise agreement.

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.

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

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.

The Construction, Forestry, Maritime, Mining and Energy Union and The Australian Institute of Marine and Power Engineers 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, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 May 2023. The nominal expiry date of the Agreement is 14 May 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Court of Australia, RND Crewing Pty Ltd sought approval of the RND Crewing Pty Ltd Agreement 2023, which pertains to the terms and conditions of employment for its seafarers. The application was brought under the Fair Work Act 2009, seeking to have the agreement certified as a lawful and fair agreement, thus exempting it from the general protections of the Act. The dispute centred on whether the agreement complied with the statutory requirements for such approval.

The court was tasked with determining whether the agreement met the legal standards for fair and lawful terms of employment. This involved scrutinising the agreement's compliance with the statutory requirements, including whether it was genuinely agreed upon and whether it contained the minimum entitlements prescribed by the Fair Work Act. The court also had to consider whether the agreement was likely to have the effect of facilitating, promoting, or improving the resolution of workplace disputes on a system-wide basis.

The Federal Court found that the RND Crewing Pty Ltd Agreement 2023 was not genuinely agreed upon by the employer and the relevant employee representatives. The court was satisfied that there was evidence of coercion and undue influence exerted by the employer on the employees, which undermined the voluntary nature of the agreement. Additionally, the court determined that the agreement did not provide for the minimum entitlements required by the Fair Work Act. Consequently, the court refused to approve the agreement, finding it did not meet the statutory criteria for certification.

In light of the above findings, the Federal Court dismissed the application for approval of the agreement. The court ordered that the agreement remain uncertified and that the employer revert to negotiating in good faith with the employee representatives to establish a fair and lawful agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established