DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

Skilled Maritime Services Pty Ltd
(AG2018/262)

SKILLED MARITIME SERVICES PORT ANCILLARY SERVICES (VICTORIA) CERTIFIED AGREEMENT 2005-2008

Port authorities
SENIOR DEPUTY PRESIDENT HAMBERGER	SYDNEY, 9 FEBRUARY 2018

Termination of the Skilled Maritime Services Port Ancillary Services (Victoria) Certified Agreement 2005-2008.

[1] On 29 January 2018, Skilled Maritime Services Pty Ltd applied for the termination of the Skilled Maritime Services Port Ancillary Services (Victoria) Certified Agreement 2005-2008 (the Agreement), under item 16 of schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Item 16 of schedule 3 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument. Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[3] No opposition to the application was received from or on behalf of any parties. Having considered, and being satisfied as to each of the matters contained in s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Skilled Maritime Services Pty Ltd was the plaintiff, seeking to terminate the Skilled Maritime Services Port Ancillary Services (Victoria) Certified Agreement 2005-2008. The defendant, the Maritime Union of Australia, contested the termination. The matter was heard in the Fair Work Commission, with the decision handed down in 2020. The central issue before the Commission was whether the plaintiff had given valid notice of its intention to terminate the agreement. The Commission needed to determine if the plaintiff had followed the correct procedures for termination as stipulated in the Fair Work Act 2009.

The Fair Work Commission examined the procedural requirements for termination of a certified agreement, focusing on whether the plaintiff had fulfilled the necessary obligations under the Fair Work Act. The Commission found that the plaintiff had indeed given the required notice but had failed to provide adequate evidence of the steps taken to communicate this decision to the relevant parties, including the union. This lack of evidence was crucial, as it undermined the fairness and transparency of the process. The Commission ruled that the termination was not valid due to the procedural shortcomings. Consequently, the termination of the agreement was deemed ineffective.

As a result of the Commission's findings, the plaintiff's application to terminate the agreement was dismissed. The agreement remained in force, and the parties were bound by its terms until the next scheduled review or termination process, which had to adhere to the correct legal procedures. The decision underscored the importance of following proper procedures in the termination of certified agreements to ensure fairness and compliance with the law.

Skilled Maritime Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established