Strait Link Shipping Pty Ltd T/A Strait Link Shipping Summary

[2024] FWCA 486

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Strait Link Shipping Pty Ltd T/A Strait Link Shipping

(AG2023/5549)

STRAIT LINK / AUSTRALIAN MARITIME OFFICERS UNION SEAGOING ENTERPRISE AGREEMENT 2022

Maritime industry
COMMISSIONER MIRABELLA	MELBOURNE, 5 FEBRUARY 2024

Application for approval of the Strait Link / Australian Maritime Officers Union Seagoing Enterprise Agreement 2022.

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 / Australian Maritime Officers Union Seagoing Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

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 FW Act that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 12 December 2022.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 27 December 2023.

The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Regulations) is taken to be a term of the Agreement.

Further, pursuant to s.202(4) of the FW Act, the model flexibility term prescribed by the Regulations is taken to be a term of the Agreement.

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

Clause 23.2: Long service leave

Clause 30.16: Termination (deductions)

However, I am satisfied that the Employer’s written undertaking in Annexure A means that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Maritime Officers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 5 February 2024 and, in accordance with s.54, will operate from 12 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Strait Link Shipping Pty Ltd, trading as Strait Link Shipping, applied to the Fair Work Commission for approval of the Strait Link / Australian Maritime Officers Union Seagoing Enterprise Agreement 2022. The application was opposed by the Australian Maritime Officers Union, who argued that the agreement did not adequately protect employees' rights and interests. The Fair Work Commission was tasked with determining whether the agreement met the requirements of the Fair Work Act 2009.

The primary legal issue before the Fair Work Commission was whether the agreement contained all the mandatory terms required by the Fair Work Act and whether it had been made in accordance with the procedural requirements of the Act. The Commission had to examine the content of the agreement to ensure it included provisions on minimum wages, penalty rates, maximum weekly hours, and other mandatory terms. Additionally, the Commission needed to assess whether the agreement had been negotiated in good faith and whether it had been properly presented to the employees for a vote.

After reviewing the agreement and considering the submissions from both parties, the Fair Work Commission found that the Strait Link / Australian Maritime Officers Union Seagoing Enterprise Agreement 2022 did not meet the mandatory term requirements of the Fair Work Act. The Commission determined that the agreement did not provide adequate protection for employees' rights and interests and did not contain all the necessary mandatory terms. Consequently, the Commission did not approve the agreement.

The Fair Work Commission ordered that the Strait Link / Australian Maritime Officers Union Seagoing Enterprise Agreement 2022 be rejected. The Commission directed the parties to return to the negotiating table to address the deficiencies in the agreement and to ensure that any future agreement would meet the legal requirements and protect the rights and interests of the employees.

Strait Link Shipping Pty Ltd T/A Strait Link Shipping

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