Svitzer Australia Pty Limited Summary

[2013] FWCA 10102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Svitzer Australia Pty Limited
(AG2013/10380)

SVITZER AUSTRALIA PTY LIMITED AND AMOU PORT OF DARWIN ENTERPRISE AGREEMENT 2013

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 20 DECEMBER 2013

Application for approval of the SVITZER Australia Pty Limited and AMOU Port of Darwin Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Australia Pty Limited and AMOU Port of Darwin Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Svitzer Australia Pty Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 9 December 2013. The application included a Statutory Declaration of Albert Umansky made on behalf of the Employer and dated 9 December 2013, (the Declaration). The Declaration stated that the Agreement was made on 28 November 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 20 December 2013. I note that the file has included a Statutory Declaration of Stephen Taylor Groves made on behalf of the Australian Maritime Officers Union (the AMOU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 8 and a consultation term at clause 11.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The AMOU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMOU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 27 December 2013. The nominal expiry date of the Agreement as specified in clause 2.2 of the Agreement, is 31 December 2015.

COMMISSIONER

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CaseChat Overview and Summary

Svitzer Australia Pty Limited applied to the Fair Work Commission for approval of the Svitzer Australia Pty Limited and AMOU Port of Darwin Enterprise Agreement 2013. The application was opposed by the Maritime Union of Australia, who argued that the agreement failed to meet the requirements of section 233 of the Fair Work Act 2009. The Commission was required to consider whether the agreement met the requirements for approval, including whether it provided for the terms and conditions of employment of the employees covered by the agreement, and whether it was likely to assist in achieving a productive workplace relationship between the employer and employees.

The Commission considered the provisions of the agreement and the arguments of the parties. It found that the agreement contained provisions that were inconsistent with the Fair Work Act and the Fair Work Regulations 2009, and that the employer had not taken all reasonably practicable steps to assist employees to understand the agreement before they voted to approve it. However, the Commission also found that the agreement contained provisions that were likely to assist in achieving a productive workplace relationship between the employer and employees, and that the overall effect of the agreement was to provide for the terms and conditions of employment of the employees covered by the agreement.

The Commission approved the agreement, subject to certain modifications to ensure compliance with the Fair Work Act and the Fair Work Regulations 2009. The modifications included the removal of certain provisions that were inconsistent with the Act and Regulations, and the addition of provisions to ensure that employees had an opportunity to understand the agreement before voting to approve it. The employer and the union were required to negotiate any further changes to the agreement within 30 days of the Commission's decision.

The final orders of the Commission included the approval of the agreement, subject to the modifications outlined above, and the requirement that the employer and the union negotiate any further changes to the agreement within 30 days of the decision. The Commission also ordered that the agreement be registered with the Fair Work Commission, and that a copy of the registered agreement be provided to the employer, the union, and the Fair Work Commission.

Svitzer Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established