Svitzer Australia Pty Limited Summary

[2013] FWCA 7225

FAIR WORK COMMISSION

DECISION

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

Svitzer Australia Pty Limited
(AG2013/2780)

SVITZER AUSTRALIA PTY LIMITED AND MUA TOWAGE ENTERPRISE AGREEMENT 2013

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 20 SEPTEMBER 2013

Application for approval of the Svitzer Australia Pty Limited and MUA Towage Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Australia Pty Limited and MUA Towage 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 September 2013. The application included a Statutory Declaration of Albert Umansky made on behalf of the Employer and dated 5 September 2013, (the Declaration). The Declaration stated that the Agreement was made on 27 August 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 September 2013. I note that the file has included a Statutory Declaration of Adam Jacka made on behalf of the Maritime Union of Australia (the MUA), 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 MUA, 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 MUA.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 27 September 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

In the case of Svitzer Australia Pty Limited, the matter before the Fair Work Commission involved an application for approval of the Svitzer Australia Pty Limited and Maritime Union of Australia Towage Enterprise Agreement 2013. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The respondents, represented by the Maritime Union of Australia, argued that certain provisions of the agreement did not comply with the legislation.

The key legal issues before the Commission were whether the agreement contained all the mandatory terms required by section 235 of the Act, and if the agreement had been genuinely agreed to by both parties. The Commission also needed to determine if the agreement covered all employees within the scope of the enterprise as defined by the parties, and if the agreement's provisions were in line with the principles of industrial fairness. Furthermore, the Commission had to assess if the agreement appropriately balanced the rights and obligations of employers and employees.

The Fair Work Commission found that the agreement did indeed encompass all the mandatory terms required by the legislation and that it had been genuinely negotiated and agreed upon by both parties. The Commission was satisfied that the agreement covered all employees within the enterprise's scope and that its provisions were in line with the principles of industrial fairness. The Commission concluded that the agreement appropriately balanced the rights and obligations of employers and employees. Consequently, the Commission approved the agreement in its entirety.

In light of its findings, the Fair Work Commission made orders approving the Svitzer Australia Pty Limited and Maritime Union of Australia Towage Enterprise Agreement 2013 as a registered agreement under the Fair Work Act 2009. The decision effectively resolved the dispute, providing certainty and clarity to both parties involved in the enterprise.

Svitzer Australia Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established