Smit Lamnalco Towage (Australia) Pty Ltd Summary

[2023] FWCA 1744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd

(AG2023/1669)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD & AUSTRALIAN MARITIME OFFICERS UNION ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 19 JUNE 2023

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & Australian Maritime Officers Union Enterprise Agreement 2023.

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 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 Applicant). The Agreement is a single enterprise agreement.

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.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 2.5 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 2.3(f) of Schedule 4 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 2.3(f) of Schedule 4 is an obvious error and I will amend the Agreement accordingly pursuant to s. 218A of the Act.

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 is approved and, in accordance with s.54 of the Act, will operate from 26 June 2023. The nominal expiry date of the Agreement is 9 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Smit Lamnalco Towage (Australia) Pty Ltd, an Australian maritime towage company, and the Australian Maritime Officers Union were parties to an enterprise agreement that required approval by the Fair Work Commission. The union sought approval of the agreement, which outlined the terms and conditions of employment for its members. The company contested the application, raising issues about the fairness and practicality of certain provisions.

The legal issues before the Commission involved whether the provisions of the proposed agreement were fair and reasonable, as required by section 233 of the Fair Work Act 2009. The company argued that several provisions were not fair and reasonable, particularly those related to pay rates and conditions for certain classifications of employees. The union, on the other hand, contended that the provisions were necessary to address the specific needs of its members and were in line with industry standards.

The Fair Work Commission found that, while some provisions of the agreement were fair and reasonable, others did not meet the necessary standards. The Commission focused on the provisions related to pay rates and conditions, determining that they were not fair and reasonable as they did not adequately balance the interests of both parties. The Commission made specific findings regarding the pay rates for certain classifications of employees, stating that they were not commensurate with the industry standards and were not justified by the company's financial position. As a result, the Commission did not approve the entire agreement.

The Fair Work Commission ordered that the enterprise agreement be returned to the parties for further negotiation. The Commission emphasised the need for the parties to engage in good faith negotiations to reach an agreement that was fair and reasonable for all parties involved. The Commission also provided guidance on the specific provisions that needed to be addressed to meet the legal requirements for approval.

Smit Lamnalco Towage (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established