Smit Lamnalco Towage (Australia) Pty Ltd
[2023] FWCA 1972
•3 JULY 2023
| [2023] FWCA 1972 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Smit Lamnalco Towage (Australia) Pty Ltd
(AG2023/1717)
SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD MACKAY PILOT VESSELS ENTERPRISE AGREEMENT 2023
| Maritime industry | |
| DEPUTY PRESIDENT MASSON | MELBOURNE, 3 JULY 2023 |
Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd Mackay Pilot Vessels Enterprise Agreement 2023.
An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd Mackay Pilot Vessels Enterprise Agreement 2023 (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 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 17 of the Form F17 provides that the notification time for the Agreement was 29 October 2021.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 25.2 of the Form F17 provides that the Agreement was made on 23 May 2023.
The Employer 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. The undertakings are taken to be a term of 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.
I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 1.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.
The Applicant has raised a cross-referencing error in clause 19.7(b)(iii) of the Agreement and has sought that the Commission exercise its discretion pursuant to s.218A of the Act to amend the obvious error. I am satisfied that the cross-referencing error in clause 19.7(b)(iii) is an obvious error and I will amend the Agreement accordingly pursuant to s. 218A of the Act.
The Australian Maritime Officers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 July 2023. The nominal expiry date of the Agreement is 20 July 2026.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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Annexure A
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