Smit Lamnalco Towage (Australia) Pty Ltd T/A Smit Lamnalco Towage (Australia) Pty Ltd

[2023] FWCA 2801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Smit Lamnalco Towage (Australia) Pty Ltd T/A Smit Lamnalco Towage (Australia) Pty Ltd

(AG2023/2519)

SMIT LAMNALCO TOWAGE (AUSTRALIA) PTY LTD WEIPA RIVER

Logistics Enterprise Agreement 2023

Maritime industry
COMMISSIONER HUNT	BRISBANE, 1 SEPTEMBER 2023

Application for approval of the Smit Lamnalco Towage (Australia) Pty Ltd Weipa River Logistics Enterprise Agreement 2023

Smit Lamnalco Towage (Australia) Pty Ltd T/A Smit Lamnalco Towage (Australia) Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Smit Lamnalco Towage (Australia) Pty Ltd Weipa River Logistics Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. I was not satisfied with the response and undertakings provided and sought for the Employer to provide revised undertakings addressing the specific concerns raised.

The Employer responded with revised written undertakings on 24 August 2023. A copy of the revised undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the bargaining representatives regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. On 25 August 2023, the Australian Maritime Officers’ Union (AMOU) wrote to my chambers advising that it is content with the undertakings provided by the Employer.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. 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. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The Australian Institute of Marine and Power Engineers (AIMPE), the AMOU and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) being bargaining representatives for the Agreement have given 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 AIMPE, AMOU and CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 September 2023. The nominal expiry date of the Agreement is 9 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

Smit Lamnalco Towage (Australia) Pty Ltd, trading as Smit Lamnalco Towage (Australia) Pty Ltd, applied to the Fair Work Commission for the approval of the Weipa River Logistics Enterprise Agreement 2023. The agreement was proposed between the company and its employees represented by the Maritime Union of Australia. The primary dispute involved the terms and conditions of employment as outlined in the proposed agreement, including wages, working hours, and other employment-related matters.

The court was required to determine whether the proposed agreement met the necessary requirements under the Fair Work Act 2009. This included assessing if the agreement was a "better off overall test" (BOOT) agreement, meaning whether the employees would be better off overall under the new agreement than they would be under the applicable award or safety net. The court also needed to consider whether the agreement complied with all procedural and substantive fairness requirements.

The Fair Work Commission found that the proposed agreement did indeed meet the BOOT criteria, as the employees would be better off overall with the new terms. The court confirmed that the agreement was procedurally and substantively fair. It observed that the agreement provided for fair compensation, reasonable working hours, and included provisions for dispute resolution and employee welfare. The commission approved the agreement, acknowledging that it appropriately balanced the interests of both the employer and the employees.

The final orders of the court approved the Weipa River Logistics Enterprise Agreement 2023, allowing it to come into effect as per the terms outlined in the agreement. The decision was made on the basis that the agreement was fair and met all statutory requirements under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established