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

[2023] FWCA 2801

[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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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

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Annexure A – Undertakings