DECISION

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

Smit Lamnalco Towage (Australia) Pty Ltd
(AG2015/2213)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD & AIMPE MARINE ENGINEERS HARBOUR TOWAGE ENTERPRISE AGREEMENT 2014

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 2 APRIL 2015

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage 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 Gregory James Yates made on behalf of the Australian Institute of Marine and Power Engineers (the AIPME), 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 AIMPE, 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 AIMPE.

[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

Smit Lamnalco Towage (Australia) Pty Ltd applied to the Fair Work Commission for the approval of the 2014 Enterprise Agreement between the company and AIMPE Marine Engineers. The applicant sought to ensure that the agreement was valid and enforceable in accordance with the Fair Work Act 2009. The legal issues the court had to resolve included whether the agreement met the statutory requirements for approval, particularly whether it complied with the Fair Work Act’s provisions regarding the process for enterprise agreements and whether it was made in good faith and for the purpose of establishing the terms and conditions of employment.

The court considered the procedural fairness of the agreement's formation, including whether the necessary consultations were conducted and whether the agreement was genuinely negotiated. It also examined whether the agreement contained all the mandatory terms prescribed by the Fair Work Act and whether it provided for minimum entitlements, including wages, hours of work, and other conditions of employment. The court reviewed the evidence presented by both parties regarding the negotiation process and the contents of the agreement to determine if it complied with the statutory requirements. The outcome hinged on whether the agreement satisfied all the legal criteria for approval under the Fair Work Act.

The court found that the agreement was made in compliance with the statutory requirements and was approved. The applicant demonstrated that the necessary consultations were held, and the agreement was genuinely negotiated. The court was satisfied that the agreement contained all the mandatory terms and provided for minimum entitlements as required by the Fair Work Act. The evidence supported that the agreement was made in good faith and for the purpose of establishing the terms and conditions of employment. Consequently, the court approved the agreement, ensuring its enforceability and compliance with the relevant legislative framework.

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