DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RND Crewing Pty Ltd
(AG2018/3460)

RND CREWING PTY LTD AGREEMENT 2018

Dredging industry
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 12 APRIL 2019

Application for approval of the RND Crewing Pty Ltd Agreement 2018.

Introduction and background

[1] RND Crewing Pty Ltd (RND Crewing) has applied for approval of the RND Crewing Pty Ltd Agreement 2018 (Enterprise Agreement), which covers officers and engineers employed by RND Crewing (Employees). RND Crewing operates dredging vessels in the dredging industry at various locations around Australia. The Employees are covered by the Dredging Industry Award 2010 (Dredging Award).

[2] Prior to addressing RND Crewing’s application for approval of the Enterprise Agreement, it is necessary, by way of background, to say something about an earlier application by RND Crewing for the approval of an enterprise agreement also known as the RND Crewing Pty Ltd Agreement 2018 (Earlier Agreement). 1 The Earlier Agreement was the subject of a successful vote on 15 January 2018 and an application for approval by RND Crewing to the Fair Work Commission (Commission) on 17 January 2018. Following the filing of submissions by the Australian Maritime Officers Union (AMOU) and the Australian Institute of Marine and Power Engineers (AIMPE) opposing the approval of the Earlier Agreement, RND Crewing decided to formally end the bargaining process in relation to the Earlier Agreement and enter into new negotiations with the Employees for a new enterprise agreement.2 RND Crewing notified the Employees, in writing, of its decision in that regard on 3 April 2018.3 RND Crewing formally withdrew its application for approval of the Earlier Agreement on 24 May 2018.

Making the Enterprise Agreement and applying for approval

[3] On 3 April 2018, RND Crewing provided a copy of the proposed Enterprise Agreement to the five Employees it employed at that time who would be covered by the Enterprise Agreement. The only difference between the Enterprise Agreement and the Earlier Agreement was an amendment to clause 3.2.

[4] On 4 April 2018, RND Crewing provided a notice of employee representational rights (NERR) to the five Employees it employed at that time who would be covered by the Enterprise Agreement. In the period between 4 and 6 April 2018, each of those five Employees notified RND Crewing that they had appointed themselves as their own bargaining representative for the Enterprise Agreement.

[5] On 24 May 2018, AIMPE sent RND Crewing a “notice of intention to commence bargaining”. RND Crewing responded to that notice by informing AIMPE that each of its employees had appointed themselves as their own bargaining representative, with the result that AIMPE was not their bargaining representative.

[6] On 18 June 2018, RND Crewing provided a new Employee with a copy of the Enterprise Agreement. On 21 June 2018, the new Employee notified RND Crewing that he wanted to act as his own bargaining representative…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: RND Crewing Pty Ltd [2019] FWCA 2552
Case: [2019] FWCA 2552
Decision Date: 12 APRIL 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved RND Crewing Pty Ltd, a company seeking approval of the RND Crewing Pty Ltd Agreement 2018. The application for approval was made under section 235 of the Fair Work Act 2009. The dispute centred on whether the proposed agreement complied with the requirements of the Act and the Fair Work (Registered Organisations) Act 2009, including the necessity of ensuring that the agreement covered employees who were members of a registered organisation, in this case, the Maritime Union of Australia.

The primary legal issues before the Commission were whether the agreement met the statutory criteria for approval, particularly regarding its coverage of employees, the inclusion of appropriate minimum terms and conditions, and whether it provided for the effective resolution of disputes. The Commission also had to consider whether the agreement was made in good faith and whether it was likely to achieve its intended purpose of providing a framework for fair and effective workplace relations.

The Commission found that the proposed agreement was made in good faith and complied with the relevant legislative requirements. The agreement was comprehensive in its coverage of employees, including those who were members of the Maritime Union of Australia. It also contained appropriate minimum terms and conditions that were consistent with the statutory minimum standards set out in the Fair Work Act. Additionally, the agreement provided for mechanisms to effectively resolve disputes, ensuring that it met the objectives of the Act. Therefore, the Commission approved the RND Crewing Pty Ltd Agreement 2018, recognising it as a modern award under the Fair Work Act.

Orders