DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd
(AG2015/2215)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD & AUSTRALIAN MARITIME OFFICERS UNION ENTERPRISE AGREEMENT 2014

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 2 APRIL 2015

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & Australian Maritime Officers Union Enterprise Agreement 2014.

[1] 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 2014 (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 Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 19 March 2015. The application included a Statutory Declaration of Emma Fensom made on behalf of the Employer and dated 18 March 2015, (the Declaration). The Declaration stated that the Agreement was made on 3 March 2015. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the application was made two days after the 14 day period, and the employer has provided submissions regarding the late lodgement, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 2 April 2015. I note that the file has included a Statutory Declaration of Robert Coombs made on behalf of the Australian Maritime Officers’ Union (the AMOU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 9 and a consultation term at clause 36.

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

[7] The AMOU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMOU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 9 April 2015. The nominal expiry date of the Agreement as specified in clause 3 of the Agreement, is 30 June 2017.

COMMISSIONER

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CaseChat Overview and Summary

The case involves Smit Lamnalco Towage (Australia) Pty Ltd and the Australian Maritime Officers Union. The dispute was before the Fair Work Commission and pertains to the application for approval of the Enterprise Agreement between the two parties. The applicant, Smit Lamnalco Towage, sought approval for the proposed changes to the existing agreement, which was due for renewal.

The central legal issues that the Commission had to decide were whether the agreement met the necessary conditions for approval under the Fair Work Act 2009. These conditions include ensuring the agreement does not adversely affect employees' wages and conditions, does not facilitate the underpayment of employees, and does not negatively impact employees' ability to organise and participate in industrial activities. Furthermore, the Commission had to consider whether the agreement was made in good faith and whether proper consultation processes were followed.

In its reasoning, the Fair Work Commission assessed the provisions of the proposed agreement against the statutory requirements. The Commission determined that the changes proposed by the applicant did not adversely affect the wages and conditions of the employees. It also found that the agreement did not facilitate the underpayment of employees and did not negatively affect their ability to organise and participate in industrial activities. The Commission further concluded that the agreement was made in good faith and that the necessary consultation processes had been followed. Consequently, the Commission approved the application for the agreement.

The final orders of the Commission were that the Enterprise Agreement between Smit Lamnalco Towage and the Australian Maritime Officers Union be approved as of the date of the decision. This approval ensures that the terms and conditions of employment set out in the agreement are legally binding on both parties.

Smit Lamnalco Towage (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established