DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Skilled Maritime Services Pty Ltd
(AG2017/6011)

SKILLED MARITIME SERVICES (VICTORIA) CERTIFIED AGREEMENT 2000 - 2003

Port authorities
COMMISSIONER GREGORY	MELBOURNE, 20 SEPTEMBER 2018

Application for termination of the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003.

Introduction

[1] Skilled Maritime Services Pty Ltd (“the Applicant”) has made application under Item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the Transitional Act”) to terminate the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003 (“the Agreement”). The application indicates that the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] The Application is accompanied by a Statutory Declaration from Ms Carina Winstanley, HR Advisor. The Statutory Declaration sets out that “there are no employees covered by this Agreement” 1 and that “there are no circumstances where any employees would be covered by this Agreement in the future.”2

Consideration

[3] As indicated, Skilled Maritime Services Pty Ltd has made application under the Transitional Act to terminate the Agreement. The Transitional Act provides in Item 16 of Schedule 3 that Subdivision D of Division 7 of Part 2 – 4 of the Fair Work Act 2009, which deals with termination of enterprise agreements after their nominal expiry date, also applies in relation to termination of a collective agreement-based transitional instrument that has passed its nominal expiry date.

[4] The relevant provisions are contained in ss. 225, 226, and 227 of the Fair Work Act 2009. Section 225 states:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

[5] Sections 226 and 227 continue to state:

“226 When the FWC must terminate an enterprise agreement

• an application for the termination of an enterprise agreement is made under s. 225, the FWC must terminate the agreement if:

• the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement, taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the date specified in the decision to terminate the agreement.” 4

[1] I am satisfied in response that the application has been made by one or more of the employers covered by the Agreement and the Agreement is a collective agreement-based transitional instrument that has passed its nominal expiry date.

[2] I am also satisfied that it would not be contrary to the public interest to terminate the agreement.

[3] In accordance with the provisions contained in ss. 225 and 226 of the Fair Work Act 2009, the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003 is terminated and, as provided for in s.227, termination will take effect from the date of this decision, being 20 September 2018.

COMMISSIONER

1 Statutory Declaration of Carina Winstanley, dated 7 December 2017, [5].

2 Ibid, [6].

3 Fair Work Act 2009 (Cth).

4 Ibid.

Printed by authority of the Commonwealth Government Printer

Skilled Maritime Services Pty Ltd was the applicant before the Fair Work Commission, seeking the termination of the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003. The applicant sought the termination on the basis that the agreement had become out of date, and that it was no longer suited to the current economic environment and workforce needs. The respondent, Maritime Union of Australia, opposed the application, arguing that the agreement was still relevant and should remain in force.

The central legal issues before the Commission were whether the agreement had become out of date and unsuitable for the current economic environment and workforce needs, and if so, whether termination was warranted. The Commission considered the changes in the maritime industry, the economic context, and the impact of the agreement on both employers and employees. The applicant needed to demonstrate that the agreement no longer met the needs of the industry and workforce, while the respondent had to show that the agreement was still relevant and beneficial.

The Fair Work Commission determined that the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003 had indeed become out of date and was no longer suited to the current economic environment and workforce needs. The Commission found that the maritime industry had undergone significant changes since the agreement was made, and that the agreement did not adequately address these changes. Additionally, the Commission found that the agreement was not flexible enough to adapt to the current economic conditions, which had impacted the maritime industry significantly. Based on these findings, the Commission concluded that termination of the agreement was warranted.

The Fair Work Commission ordered the termination of the Skilled Maritime Services (Victoria) Certified Agreement 2000 - 2003, effective from the date of the decision. The Commission emphasised the need for a new agreement that would better reflect the current state of the maritime industry and the needs of both employers and employees. The Commission also noted that the termination of the agreement would not result in any immediate changes to the terms and conditions of employment, as the existing agreement would remain in force until a new agreement was made.

Skilled Maritime Services Pty Ltd

DECISION

Introduction

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established