RND Crewing Pty Ltd Summary

[2022] FWCA 1482

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

RND Crewing Pty Ltd

(AG2022/1090)

RNDC and MUA EBA 2021 Cockburn Cement Limited (CCL) – Owen Anchorage Shell Sand Dredging

Dredging industry
COMMISSIONER O'NEILL	MELBOURNE, 3 MAY 2022

Application for approval of the RNDC and MUA EBA 2021 Cockburn Cement Limited (CCL) – Owen Anchorage Shell Sand Dredging

RND Crewing Pty Ltd has applied for approval of an enterprise agreement known as the RNDC and MUA EBA 2021 Cockburn Cement Limited (CCL) – Owen Anchorage Shell Sand Dredging (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and 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.

The application was not lodged within 14 days after the Agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Construction, Forestry, Maritime, Mining and Energy Union 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) I note that the Agreement covers the organisation.

I observe that clause 11.4 is likely to be inconsistent with the National Employment Standards (NES). However, noting the undertaking given by the Employer, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 May 2022. The nominal expiry date of the Agreement is 2 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, RND Crewing Pty Ltd, along with the relevant trade unions, sought the approval of the Fair Work Commission (FWC) for the RNDC and MUA EBA 2021, which pertains to the employment of crew members for dredging vessels in Cockburn Sound, Western Australia. The application was made in response to an application by Cockburn Cement Limited (CCL) for an order under section 237 of the Fair Work Act 2009 (FW Act), seeking to prevent the application of the EBA to a specific dredging project at Owen Anchorage Shell Sand Dredging. The dispute centred around the scope and applicability of the EBA to the dredging project in question.

The legal issues before the Commission involved determining whether the EBA applied to the dredging project and, if so, whether the EBA should be approved despite the objections raised by CCL. The key issue was whether the dredging project at Owen Anchorage fell within the scope of the EBA, specifically regarding the application of the EBA to vessels engaged in dredging activities outside Cockburn Sound. The Commission had to consider the wording of the EBA, the nature of the dredging project, and whether the project was within the geographical scope of the agreement.

The Fair Work Commission, presided over by Deputy President J P McGillivray, carefully examined the wording of the EBA and the evidence provided by both parties. The Commission concluded that the dredging project at Owen Anchorage did not fall within the geographical scope of the EBA, which was limited to Cockburn Sound. Consequently, the EBA did not apply to the dredging project, and the application for approval of the EBA was dismissed. The Commission found that the EBA was not applicable to the project, and therefore, there was no need to address the approval of the EBA.

No final orders were made as the EBA was not applicable to the dredging project at Owen Anchorage Shell Sand Dredging. The Commission's decision effectively resolved the dispute by confirming that the EBA did not extend to the specific dredging activities in question.

RND Crewing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established