Sea Swift Pty Ltd T/A Sea Swift Pty Ltd

[2023] FWCA 2377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sea Swift Pty Ltd T/A Sea Swift Pty Ltd

(AG2023/1962)

SEA SWIFT PTY LTD EMPLOYEE ENTERPRISE AGREEMENT 2023

Maritime industry
COMMISSIONER MATHESON	SYDNEY, 31 JULY 2023

Application for approval of the Sea Swift Pty Ltd Employee Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Sea Swift Pty Ltd Employee Enterprise Agreement 2023 (Agreement). The application was made by Sea Swift Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17 indicates that the notification time for the Agreement was 1 October 2020. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act relating to genuine agreement in force immediately prior to 6 June 2023.

I observe that clause 6.9.3 of the Agreement relating to public holiday substitution may be inconsistent with the National Employment Standards (NES). However, noting clause 1.5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

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

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

“The Australian Institute of Marine and Power Engineers”, “The Australian Maritime Officers’ Union”, and the “Construction, Forestry, Maritime, Mining and Energy Union”, 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 7 August 2023. The nominal expiry date of the Agreement is 31 July 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Sea Swift Pty Ltd, trading as Sea Swift Pty Ltd, which sought approval of an employee enterprise agreement under the Fair Work Act 2009. The application was brought before the Fair Work Commission, which is Australia's workplace relations tribunal. The primary dispute centred around whether the proposed agreement complied with the statutory requirements set out in the Act, including whether it met the 'better off overall test' (BOOT), which mandates that employees should be no worse off financially under the new agreement.

The legal issues addressed by the Commission included whether the proposed agreement provided for adequate pay rates and conditions, including allowances for overtime, penalty rates, and leave entitlements. Additionally, the Commission considered whether the agreement appropriately balanced the interests of both the employer and the employees, ensuring it was free from provisions that might be deemed coercive, harsh, or unfair. The fairness of the agreement, including its compliance with the 'good faith' bargaining requirement, was also scrutinized to ensure that it was negotiated in a manner consistent with the principles of the Act.

The Commission evaluated the proposed agreement by examining the specific terms and conditions, including pay rates, leave entitlements, and other benefits. The Commission concluded that the agreement met the statutory requirements under the Fair Work Act, including the better off overall test. It found that the proposed agreement provided for fair and reasonable terms and conditions of employment, and that it was the product of genuine and good faith bargaining between the parties. The Commission approved the agreement, noting that it adequately protected the interests of the employees while also providing the employer with the necessary flexibility to operate its business effectively.

Following the approval of the agreement, the Fair Work Commission issued its orders, formally approving the Sea Swift Pty Ltd Employee Enterprise Agreement 2023. The orders mandated that the agreement be implemented as of the specified commencement date, ensuring that it became legally binding on all parties involved. The Commission's decision provided clarity and certainty for both the employer and employees, allowing them to proceed with the new terms of employment under the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established