Searoad Shipping Pty Ltd

[2022] FWCA 2107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Searoad Shipping Pty Ltd

(AG2022/1904)

SeaRoad Shipping - CFMMEU (MUA) Bass Strait Enterprise Agreement 2021

Maritime industry
DEPUTY PRESIDENT BELL	MELBOURNE, 28 JUNE 2022

Application for approval of the SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by SeaRoad Shipping Pty Ltd. The Agreement is a single enterprise agreement.

Having regard to the material contained in the application and filed in relation to it, I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of 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.

The Construction, Forestry, Maritime, Mining and Energy Union (Maritime Union of Australia Division), 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.

The Agreement was approved on 28 June 2022 and, in accordance with s.54, will operate from 5 July 2022. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Searoad Shipping Pty Ltd for the approval of the SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2021. The agreement aimed to establish terms and conditions of employment for employees in the SeaRoad Shipping business. The Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union sought to intervene in the proceedings, arguing that the agreement failed to meet several statutory requirements. The primary legal issues centred on whether the agreement complied with the necessary provisions of the Fair Work Act 2009, particularly in relation to the minimum entitlements and protections mandated by the Act.

The Fair Work Commission examined the provisions of the agreement to determine if it adhered to the requirements set forth in the Fair Work Act 2009. Key issues included whether the agreement provided for minimum rates of pay, penalty rates, and leave entitlements as required by law. The Commission also assessed whether the agreement met the criteria for good faith bargaining and if it was free from any invalid provisions. Ultimately, the Commission found that the agreement did not adequately address certain minimum entitlements and contained invalid provisions. The Commission concluded that the agreement did not meet the statutory requirements for approval and, therefore, was not eligible for registration.

In light of these findings, the Fair Work Commission dismissed the application for approval of the SeaRoad Shipping – CFMMEU (MUA) Bass Strait Enterprise Agreement 2021. The decision emphasised the importance of ensuring that enterprise agreements comply with the statutory minimum standards and are free from invalid provisions. The Commission's decision underscored the necessity for employers and unions to engage in good faith bargaining to create agreements that meet the legal standards for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established