Strait Link Shipping Pty Ltd T/A Strait Link Shipping

Case •

[2024] FWCA 529

•

6 FEBRUARY 2024
[2024] FWCA 529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Strait Link Shipping Pty Ltd T/A Strait Link Shipping

(AG2023/5443)

APPLICATION FOR APPROVAL OF THE STRAIT LINK / AIMPE ENTERPRISE AGREEMENT 2022

Maritime industry

DEPUTY PRESIDENT GRAYSON

SYDNEY, 6 FEBRUARY 2024

Application for approval of the Strait Link / AIMPE Enterprise Agreement 2022

Introduction

  1. Strait Link Shipping Pty Ltd T/A Strait Link Shipping (the Employer) has made an application for approval of an enterprise agreement known as the Strait Link / AIMPE Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

  1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 12 December 2022, the genuine agreement requirements for agreement approval in Part 2-4 of the Act, as it was just before 6 June 2023, apply to the present application. Further, as the Agreement was made on 19 December 2023 the better off overall test requirements in Part 2-4 of the Act as amended on 6 June 2023 apply.

Regulation 2.06 Requirements

  1. The signature page of the Agreement did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to allow an amendment of a document relating to a matter before the FWC and do so pursuant to s.586(a) of the Act.

NES precedence term

  1. Clause 19.1(a) of the Agreement provides that annual leave accrues on a ‘swing’ basis (i.e. every four weeks), which may be inconsistent with the National Employment Standards (NES) per s.87 of the Act, which provides that annual leave accrues progressively according to an employee’s ordinary hours of work.

  1. Clause 22.1(c) provides that an employee may take a maximum of three days of carer’s leave on any one occasion, which may be inconsistent with the NES per Part 2-2 Division 7 Subdivision A of the Act which provides no such restriction on the amount of days of paid personal leave in any instance.

  1. Clause 22.1(d) of the agreement provides that only personal leave accrued from 27 March 2006 can be used as carer’s leave, which may be inconsistent with the NES per Part 2-2 Division 7 Subdivision A of the Act, which contains no restriction on the use of paid personal leave for carers leave purposes based on the timing of its accrual.

  1. I note that in accordance with the NES precedence term in Clause 6.3(a) of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

  1. The employer provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

  1. 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.

Section 183 Bargaining Representatives

  1. The Australian Institute of Marine and Power Engineers (AIMPE) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

  1. In accordance with s.201(2), I note that the Agreement covers the AIMPE.

Approval

  1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 13 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE523468  PR771042>

ANNEXURE A

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