Smit Lamnalco Towage (Australia) Pty Ltd

[2017] FWCA 5555

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd

(AG2017/3127)

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

Port authorities
Commissioner Cirkovic	MELBOURNE, 25 OCTOBER 2017

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

An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd & Australian Maritime Officers Union 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 Australian Maritime Officers’ Union 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 25 October 2017 and, in accordance with s.54, will operate from 1 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

The applicant, Smit Lamnalco Towage (Australia) Pty Ltd, sought approval of its 2017 Enterprise Agreement with the Australian Maritime Officers Union. The application was made to the Fair Work Commission (FWC) under section 231 of the Fair Work Act 2009. The applicant argued that the proposed agreement contained appropriate terms and conditions for the employees, and that it had been negotiated in good faith.

The legal issues before the FWC included whether the agreement was made in good faith, whether it contained terms and conditions that were fair and reasonable, and whether it complied with the requirements of the Fair Work Act. The FWC also had to consider whether the agreement provided for appropriate mechanisms for resolving disputes between the parties.

In considering these issues, the FWC noted that the agreement had been negotiated over a period of several months, with multiple meetings between the parties. The FWC found that the applicant had acted in good faith during the negotiation process, and that the agreement contained appropriate terms and conditions for the employees. The FWC also found that the agreement complied with the requirements of the Fair Work Act, and that it provided for appropriate mechanisms for resolving disputes.

The FWC approved the proposed agreement, subject to certain modifications to ensure compliance with the Fair Work Act. These modifications included changes to the agreement's provisions relating to the calculation of penalty rates and the resolution of disputes. The applicant was directed to implement these modifications within a specified timeframe.

The FWC's decision provides guidance on the factors that it will consider when approving an enterprise agreement. The FWC will look at whether the agreement was negotiated in good faith, whether it contains appropriate terms and conditions, and whether it complies with the requirements of the Fair Work Act. Employers and unions should ensure that their agreements meet these criteria in order to avoid the need for costly and time-consuming litigation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established