Smit Lamnalco Towage (Australia) Pty Ltd

[2023] FWCA 1754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd

(AG2023/1670)

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

Maritime industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 16 JUNE 2023

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

An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia 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 Construction, Forestry, Maritime, Mining and Energy 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 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, along with the Maritime Union of Australia, sought approval of their 2023 Enterprise Agreement from the Fair Work Commission. The dispute centred on the validity and enforceability of the agreement, specifically concerning its terms and conditions for employees in the maritime industry. The Fair Work Commission was tasked with assessing whether the agreement met the statutory requirements under the Fair Work Act 2009 and whether it was made in good faith and without coercion.

The court had to determine whether the enterprise agreement complied with the procedural and substantive requirements set out in the Fair Work Act. This involved examining whether the agreement was fairly negotiated, contained appropriate dispute resolution mechanisms, and provided for minimum entitlements that met or exceeded the national minimum standards. Additionally, the court needed to ascertain if the agreement was made in good faith, without any undue influence or coercion, and whether it was appropriately certified by the Fair Work Ombudsman.

In reaching its decision, the Fair Work Commission thoroughly reviewed the negotiation process, the content of the agreement, and the evidence provided by both parties. The Commission found that the agreement was fairly negotiated, met all procedural requirements, and provided for terms and conditions that met or exceeded the national minimum standards. The Commission was satisfied that the agreement was made in good faith and without coercion. Consequently, the Commission approved the Enterprise Agreement, finding it to be compliant with the statutory framework.

The Fair Work Commission approved the Smit Lamnalco Towage (Australia) Pty Ltd & Maritime Union of Australia Enterprise Agreement 2023, deeming it to be fairly negotiated, procedurally sound, and in compliance with the Fair Work Act. The agreement was found to provide for terms and conditions that met or exceeded the national minimum standards and was made in good faith. As a result, the agreement was formally approved and is now enforceable under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established