Smit Lamnalco Towage (Australia) Pty Ltd

[2023] FWCA 1752

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd

(AG2023/1667)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD & AIMPE MARINE ENGINEERS HARBOUR TOWAGE ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JUNE 2023

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage Enterprise Agreement 2023.

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 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.

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 Institute of Marine and Power Engineers 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 23 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 applied to the Fair Work Commission for approval of the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage Enterprise Agreement 2023. The applicant argued that the agreement contained suitable provisions for the protection of employees' interests and was in the interests of the broader community. The application was opposed by the Australian Industrial Relations Commission, which argued that the agreement did not adequately protect employees' interests.

The central legal issue before the Commission was whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement contained suitable provisions for the protection of employees' interests and was in the interests of the broader community. The Commission also needed to consider whether the agreement complied with any relevant industrial relations laws and regulations.

In reaching its decision, the Commission considered the provisions of the Fair Work Act 2009 and relevant case law. The Commission found that the agreement contained suitable provisions for the protection of employees' interests and was in the interests of the broader community. The Commission also found that the agreement complied with all relevant industrial relations laws and regulations. Accordingly, the Commission approved the agreement.

The Fair Work Commission approved the Smit Lamnalco Towage (Australia) Pty Ltd & AIMPE Marine Engineers Harbour Towage Enterprise Agreement 2023, finding that it contained suitable provisions for the protection of employees' interests and was in the interests of the broader community. The Commission also found that the agreement complied with all relevant industrial relations laws and regulations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established