Searoad Shipping Pty Ltd

[2024] FWCA 1342

[2024] FWCA 1342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Searoad Shipping Pty Ltd

(AG2024/807)

SEAROAD SHIPPING – CFMMEU (MUA) BASS STRAIT ENTERPRISE AGREEMENT 2023

Maritime industry
COMMISSIONER PERICA	MELBOURNE, 16 APRIL 2024

SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 24 February 2023.

1. Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 5 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

1. The Employer has provided written undertakings. A copy of these undertakings is attached in Annexure A. I am satisfied 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. I therefore note the undertakings are taken to be terms of the Agreement under section 201(3) of the Act.

1. Subject to the undertakings, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

1. This matter was listed for a mention hearing on 15 April 2024 to clarify issues surrounding application of the better off overall test (BOOT) to trainee integrated ratings and cadets. In attendance were Mr. Phil Jones, represented by Mr. Chris Egan and Mr. Pete Callil of HWL Ebsworth, and Mr. Jason Campbell of the Maritime Union of Australia (MUA). After hearing submissions from Mr. Egan and receiving an amended undertaking from the Applicant I am satisfied that, in respect to TIRs and cadets, the Agreement passes the BOOT. At the mention, Mr. Campbell confirmed the MUA’s support of approval of the Agreement.

1. The MUA being a bargaining representative for the Agreement has given notice under section 183 of the Act that it wants the Agreement to cover it. I therefore note the Agreement covers the organisation under section 201(2) of the Act.

1. The Agreement is approved today 16 April 2024. It will operate from 23 April 2024 as required by section 54 of the Act. The nominal expiry date is 30 June 2025.

COMMISSIONER

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Annexure A