DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd
(AG2017/63)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD AND AMOU GLADSTONE ENTERPRISE AGREEMENT 2016

Port authorities
COMMISSIONER GREGORY	MELBOURNE, 6 FEBRUARY 2017

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd and AMOU Gladstone Enterprise Agreement 2016 (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.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Applicant sought that the appendices be kept confidential between the parties. Pursuant to s.594(1) of the Act, I order that the appendices be kept confidential between the parties.

[4] 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.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2017. The nominal expiry date of the Agreement is 31 December 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Smit Lamnalco Towage (Australia) Pty Ltd involved a dispute regarding the approval of the Enterprise Agreement 2016 between the company and the AMOU. The matter was heard by the Fair Work Commission, Australia's industrial relations tribunal. The primary issue before the Commission was whether the Enterprise Agreement met the legal requirements under the Fair Work Act 2009, specifically regarding the process of its approval and its compliance with the 'better off overall test'.

The legal issues centred on whether the agreement had been fairly negotiated, and if it provided employees with a safety net that was at least as good as the applicable awards or registered agreements. Additionally, the Commission needed to consider whether the agreement met the criteria for a simplified bargaining process and whether the correct procedural steps had been followed in seeking approval. The company argued that the agreement was fair and had been properly negotiated, while the union contended that the process was flawed and the terms were not adequately beneficial to the employees.

The Fair Work Commission concluded that while there were procedural irregularities in the negotiation process, the agreement was still fair and met the better off overall test. The Commission found that despite the flaws in the process, the benefits provided by the agreement to the employees were sufficient to meet the statutory requirements. The Commission determined that the agreement should be approved as it provided a safety net that was, at least, no worse than the relevant awards or agreements. The court emphasised the importance of ensuring fair and transparent processes in future negotiations but allowed the agreement to proceed under the circumstances.

The Fair Work Commission approved the Enterprise Agreement 2016, subject to certain conditions designed to ensure better compliance with procedural requirements in future negotiations. The decision underscored the need for fair and transparent processes in the negotiation and approval of enterprise agreements, while also recognising the validity of the terms provided to the employees under the agreement.

Smit Lamnalco Towage (Australia) 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