Svitzer Australia Pty Limited

[2023] FWCA 2131

[2023] FWCA 2131

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Australia Pty Limited

(AG2023/2084)

SVITZER AUSTRALIA PTY LIMITED NATIONAL TOWAGE ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT EASTON	SYDNEY, 11 JULY 2023

Application for approval of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023.

1. Svitzer Australia Pty Limited (the Employer) has made an application for the approval of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

1. Svitzer sent an explanatory statement to employees detailing the changes to the Agreement and how they affect the employees prior to the vote, but apparently did not send the same document to the union bargaining representatives. The Australian Institute of Marine and Power Engineers (AIMPE) and The Australian Maritime Officers’ Union (AMOU) were bargaining representatives to the matter and were in support of the Agreement. The AIMPE and AMOU disagreed with the statements made in the Form F17 regarding the agreement explanation. The AIMPE raised concerns with some incorporated material not being provided and the explanatory statement provided to the employees. The AMOU generally agreed with the context of the explanatory material sent to employees, however raised that a number of the explanations could be clearer. The Maritime Union of Australia of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) made no submissions in relation to this matter.

1. I note that Clause 43.2 – Discharge of accrued leave is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The MUA, AIMPE, and AMOU were bargaining representatives for the Agreement and have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the MUA, AIMPE and AMOU.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 18 July 2023. The nominal expiry date of the Agreement is 11 July 2027.

Variation

1. In the course of approving the Agreement two apparent defects in Clause 8 - Enterprise Flexibility were identified:

(a)clause 8 does not require the employer to ensure that any individual flexibility arrangement agreed to under the flexibility term not include a term that would be an unlawful term if the arrangement were an enterprise agreement (see s.203(2)(ii)); and

(b)clause 8 does not require the employer to give a copy of an individual flexibility arrangement agreed to within 14 days (see s.203(7)(b)).

1. On 5 July 2023 the Employer proposed amendments to clause 8 to rectify these defects. The MUA, AIMPE and AMOU were invited to provide submissions on the Employer’s proposal but did not do so.

1. Section 218A of the Act provides:

“218A    Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;

(ii) an employee covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.”

1. Section 218A of the Act allows the Commission to correct or amend obvious errors, defects or irregularities (whether in substance or form). Its evident purpose is to remove complexity associated with varying enterprise agreements in certain limited circumstances.

1. It is significant in understanding the context of s.218A that the Commission can vary an agreement on its own initiative (s.218A(2)(a)). The power to vary an agreement under s.218A is not unlike the slip rule provisions in s.602. An agreement can be varied under s.218A to the extent necessary to remove the error, defect or irregularity - and no further.

1. I am satisfied that Clause 8 of the Agreement is a defect in substance within the meaning of s.218A(1) of the Act. I am content to vary the Agreement on my own initiative to rectify the defects (PR764128). The variation will operate from the date the Agreement commences.

1. The Agreement attached to this Decision is the Agreement as varied and will operate from 18 July 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE520720 PR764127>

Annexure A