Stradbroke Ferries Pty Ltd T/A Stradbroke Ferries

[2024] FWCA 2424

[2024] FWCA 2424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Stradbroke Ferries Pty Ltd T/A Stradbroke Ferries

(AG2024/1869)

STRADBROKE FERRIES PTY LTD MARINE OPERATIONS ENTERPRISE AGREEMENT 2023

Port authorities
DEPUTY PRESIDENT DOBSON	BRISBANE, 28 JUNE 2024

Application for approval of the Stradbroke Ferries Pty Ltd Marine Operations Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Stradbroke Ferries Pty Ltd Marine Operations 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 Stradbroke Ferries Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. 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.

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 12.1 – Maximum weekly hours, however I note and accept the submissions about 2 reasonable additional hours each week and the compensation for those hours.

·   Clause 31 – Abandonment (payment of notice).

However, noting clause 3.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Maritime Officers Union (AMOU), the Australian Institute of Marine and Power Engineers (AIMPE) and the Maritime Union of Australia A Division of the Construction, Forestry and Maritime Employees Union (MUA) each lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AMOU, MUA and the AIMPE.

1. The MUA raised concerns regarding the Better Off Overall Test (BOOT). I have considered these submissions but have determined that given the more beneficial terms of the Agreement and the undertakings given, the Agreement passes the BOOT.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2027.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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