Serco Defence Services Pty Limited T/A Serco

[2025] FWCA 146

[2025] FWCA 146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Serco Defence Services Pty Limited T/A Serco

(AG2024/5107)

NUYINA CREW ENTERPRISE AGREEMENT 2024

Maritime industry
COMMISSIONER REDFORD	MELBOURNE, 16 JANUARY 2025

Application for approval of the Nuyina Crew Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Nuyina Crew Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Serco Defence Services Pty Limited T/A Serco. The Agreement is a single enterprise agreement.

Notice of Employee Representational Rights 

1. The Notice of Employee Representational Rights (NERR) distributed to employees on 3 July 2023 appears to have a different name for the Agreement to that which was eventually made. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. However, I am satisfied that this is a minor or technical error and employees covered by the Agreement were not likely to have been disadvantaged by it.

Notification of the voting process

1. While voting by employees about the Agreement began less than seven days after employees were advised of the time, place and method of the vote about the agreement, I am satisfied employees were provided with this information a reasonable time before the commencement of the vote. The Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division - Tasmanian Branch Union (MUA), who was a bargaining representative for the Agreement has confirmed its agreement with this timeframe.

Deductions

1. Clause 14.5 of the Agreement provides that if a trainee or cadet ceases employment during training or within two years of employment, other than on account of redundancy, serious illness or incapacity, or pressing necessity that causes them to leave the industry, they are to repay training and related college costs (up to 75%). Section 324 of the Act contains requirements in relation to the circumstances in which an employer may deduct an amount from an amount payable to an employee if the deduction, including that the deduction must be authorised in writing by the employee.

1. I note that despite what is said in clause 14.5 of the Agreement, any deduction from amounts payable to an employee must occur in accordance with s 324 of the Act.

Interaction with the National Employment Standards

1. Clause 2.3 of the Agreement provides that the National Employment Standards (NES) applies to employees covered by the agreement except where the agreement provides a more favourable outcome (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

a.Clause 28.3(a) – Redundancy: Clause 28.3(a) of the Agreement provides that redundancy pay is not payable where an offer of acceptable alternative employment is made to the employee. Section 120 of the Act provides that a variation of the obligation to pay redundancy pay in circumstances where the employer obtains other acceptable employment for the employee may occur, but requires an application to be made to the Fair Work Commission. Taking into account the NES precedence clause, this deviation from the terms of the NES will not prevent the approval of this Agreement, because s 120 will apply through operation of that clause in any event.

Consideration

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The Maritime Union of Australia (MUA), 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 MUA.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE527608  PR783324>