DECISION

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

Sea Swift Pty Ltd
(AG2018/5309)

DEPUTY PRESIDENT ASBURY

BRISBANE, 3 APRIL 2019

Application for approval of the Sea Swift Pty Ltd Employee Enterprise Agreement.

OVERVIEW

[1] This Decision concerns an application by Sea Swift Pty Ltd under s. 185 of the Fair Work Act 2009 (the Act) for the approval of an enterprise agreement known as the Sea Swift Pty Ltd Employee Enterprise Agreement (the 2018 Agreement). The Form F16 Application for approval states that the following employee organisations were involved in the process of making the Agreement as bargaining representatives:

• Australian Maritime Officers Union (AMOU);

• Australian Institute of Marine and Power Engineers (AIMPE);

• Construction, Forestry, Maritime, Mining and Energy Union, Maritime Union of Australia Division (CFMMEU);

• Transport Workers Union (TWU)

• Australian Workers’ Union (AWU) (collectively the Unions).

[2] The AMOU, AWU and AIMPE have each filed a Form 18 Declaration supporting the approval of the 2018 Agreement. Correspondence was also received from the TWU stating it was not in fact a bargaining representative nor did it assert that it was entitled to be one. On that basis the TWU did not intend to be covered by the 2018 Agreement. The CFMMEU opposes the approval of the 2018 Agreement on the basis of the assertion that it does not pass the Better Off Overall Test (BOOT) when compared to a relevant reference instrument, the Seagoing Industry Award 2010 (the Seagoing Award).

[3] The Commission raised a number of concerns with terms of the 2018 Agreement relating to a range of provisions. Sea Swift has responded to the Commission’s concerns and proposed undertakings which in my provisional view will address the majority of those concerns. The issue pressed by the CFMMEU is that the 2018 Agreement does not prescribe allowances for handling/securing cargo which are provided for in the Seagoing Award. Sea Swift asserts that the handling/securing cargo allowances are not applicable to employees under the 2018 Agreement on the basis that they utilise load shifting or other mechanical devices or means to handle cargo. The CFMMEU maintains that the relevant allowances apply notwithstanding that devices or other mechanical means are used to handle cargo.

[4] In written submissions filed before the hearing on 8 March 2019, Sea Swift contended that if its position with respect to the application of cargo handling allowances is correct, that the 2018 Agreement passes the BOOT. In oral submissions at that hearing Sea Swift stated that if the Commission accepts the CFMMEU’s argument that the cargo handling allowances apply notwithstanding that employees are using mechanical devices, the 2018 Agreement will not pass the BOOT. Sea Swift further stated that it will not agree to provide an undertaking to increase rates for Marine Employees under the 2018 Agreement to the extent that would be necessary to offset the non-payment of cargo handling allowances.

BACKGROUND

[5] Sea Swift and the Unions…

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

Case: [2019] FWC 2032
Decision Date: 3 APRIL 2019

CaseChat Overview and Summary

Sea Swift Pty Ltd is a company involved in maritime services, and a dispute has arisen over the approval of an employee enterprise agreement. The matter was brought before the Fair Work Commission, which has the authority to approve such agreements. The dispute involved the company and its employees, represented by a union, over the terms and conditions outlined in the proposed agreement.

The primary legal issue for the Commission was whether the proposed enterprise agreement complied with the Fair Work Act 2009. This required the Commission to examine whether the agreement met the necessary criteria for approval, including whether it provided for a fair and efficient workplace, and whether it was made in good faith. The Commission also needed to consider whether the agreement appropriately balanced the interests of the employees and the employer.

After reviewing the submissions and evidence from both parties, the Commission determined that the proposed agreement did not adequately address several key issues, including the allocation of responsibilities and the resolution of disputes. The Commission found that the agreement failed to sufficiently protect the rights of employees and did not promote a fair and efficient workplace. Consequently, the application for approval was dismissed. The Commission provided detailed reasons for its decision and outlined the specific deficiencies in the agreement.

Orders