Smit Lamnalco Towage (Australia) Pty Ltd

[2021] FWCA 6988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd
(AG2021/8080)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD AND MUA GLADSTONE ENTERPRISE AGREEMENT 2021

Maritime industry
COMMISSIONER SIMPSON	BRISBANE, 3 DECEMBER 2021

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd and MUA Gladstone Enterprise Agreement 2021 (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.

[2] The Applicant has provided written undertakings. 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.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[6] Appendix 1 and Appendix 2 are publicly accessible on the Commission’s file should anyone, such as an employee, request to access it.

[7] The Appendices are not in the Agreement itself, as such I am satisfied that there is no redacting being made to the Agreement which would cause conflict with the decision of AWU v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FCWFB 7501.

[5] Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a Form F18 statutory declaration supporting approval of the Agreement and giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the CFMMEU.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

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 and Maritime Union of Australia Gladstone Enterprise Agreement 2021. The agreement was made in the context of an industrial dispute involving the company and its employees, represented by the Maritime Union of Australia. The company sought to have the agreement, which included provisions for wages, hours of work, and other employment conditions, recognised and approved by the Fair Work Commission.

The legal issues before the Commission involved determining whether the agreement complied with the requirements of the Fair Work Act 2009. This included assessing whether the agreement was made in good faith, whether it was free from coercion or undue influence, and whether it was consistent with the Fair Work (Registered Organisations) Act 2009 and the Fair Work Regulations 2009. Additionally, the Commission had to consider whether the agreement was in the interests of the employees and the company, and whether it promoted harmonious, productive, and cooperative workplace relations.

In reaching its decision, the Commission considered the evidence and submissions presented by the parties. The Commission found that the agreement was made in good faith, was free from coercion or undue influence, and was consistent with the relevant legislation. The Commission also found that the agreement was in the interests of the employees and the company, and promoted harmonious, productive, and cooperative workplace relations. The Commission approved the agreement, and it will now be binding on the parties from the date of the decision.

The Fair Work Commission approved the Smit Lamnalco Towage (Australia) Pty Ltd and Maritime Union of Australia Gladstone Enterprise Agreement 2021, and the agreement will now be binding on the parties. The Commission found that the agreement was made in good faith, was free from coercion or undue influence, and was consistent with the relevant legislation. The Commission also found that the agreement was in the interests of the employees and the company, and promoted harmonious, productive, and cooperative workplace relations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established