Smit Lamnalco Towage (Australia) Pty Ltd

[2017] FWCA 5674

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd

(AG2017/4120)

Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2017

Maritime industry
Commissioner Cirkovic	MELBOURNE, 31 OCTOBER 2017

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2017.

An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Smit Lamnalco Towage (Australia) Pty Ltd. The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that 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.

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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Maritime Union of Australia 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 31 October 2017 and, in accordance with s.54, will operate from 7 November 2017. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Smit Lamnalco Towage (Australia) Pty Ltd and the Maritime Union of Australia brought an application to the Fair Work Commission for approval of an Enterprise Agreement. The company, which operates tug and barge services, and the union, representing maritime workers, sought to finalise terms and conditions of employment. The Commission was required to determine whether the agreement met the statutory criteria for approval under the Fair Work Act 2009.

The primary legal issue was whether the Enterprise Agreement complied with the requirements of the Act, including whether it provided for genuine bargaining, and if it was free from any illegality, coercion, or undue influence. The union argued that the agreement was the product of genuine bargaining and met all necessary statutory criteria. The company supported the application, asserting that the agreement had been fairly negotiated and was in the best interests of both parties.

The Commission considered the evidence and submissions presented by both parties. It found that the agreement had been negotiated in good faith and was not the result of any coercion or undue influence. The agreement was deemed to provide for genuine bargaining and met all requirements under the Act. Therefore, the Commission approved the Enterprise Agreement, finding it to be fair and reasonable in all respects.

The Fair Work Commission approved the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2017, confirming its compliance with the statutory criteria. The Commission's decision was based on the evidence presented that the agreement was the result of genuine bargaining and met all requirements under the Fair Work Act 2009. The approval of the agreement ensures that the terms and conditions of employment are fair and reasonable for both the company and the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established