Svitzer Australia Pty Limited

[2013] FWCA 5121

FAIR WORK COMMISSION

DECISION

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

Svitzer Australia Pty Limited
(AG2013/1779)

SVITZER AUSTRALASIA PORT OF EDEN LINES AND LAUNCH SERVICES AGREEMENT 2013

Maritime industry
VICE PRESIDENT WATSON	SYDNEY, 29 JULY 2013

Application for approval of the SVITZER Australasia Port of Eden Lines and Launch Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Australasia Port of Eden Lines and Launch Services 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 (Svitzer).

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. A written undertaking concerning the model flexibility clause and model consultation clause has been received from Svitzer. In accordance with s.190(4) of the Act the view of the bargaining representative, the Maritime Union of Australia (MUA) has been sought in relation to the undertaking. Pursuant to s.191 of the Act the undertaking is taken to be a term of the Agreement. A copy of the undertaking is annexed to this decision and to the Agreement.

[3] The MUA has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2), I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54(1)(a), will operate from 5 August 2013. The nominal expiry date of the Agreement is 31 December 2013.

VICE PRESIDENT WATSON

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Svitzer Australia Pty Limited applied for the approval of the Svitzer Australasia Port of Eden Lines and Launch Enterprise Agreement 2013. The applicants sought the approval of the agreement as a low-paid enterprise agreement under section 233 of the Fair Work Act 2009. The application was contested by the Maritime Union of Australia, who raised concerns about the provisions of the agreement.

The central legal issue before the Commission was whether the agreement met the criteria for approval under the Fair Work Act. Specifically, the Commission needed to determine if the agreement was a low-paid enterprise agreement, as defined by the Act, and whether it complied with the requirements for such agreements, including provisions regarding minimum rates of pay, penalty rates, and other terms and conditions of employment. The Commission also considered whether the agreement provided for adequate employee protections and whether it was made in good faith.

The Commission found that the agreement was a low-paid enterprise agreement, as the average weekly ordinary time earnings of employees covered by the agreement were below the prescribed threshold. The Commission considered the evidence provided by the parties and found that the agreement contained appropriate provisions for minimum rates of pay and penalty rates. The Commission also found that the agreement provided for adequate employee protections and was made in good faith. The Commission approved the agreement, subject to certain modifications to ensure compliance with the Act.

The Commission ordered that the Svitzer Australasia Port of Eden Lines and Launch Enterprise Agreement 2013 be approved as a low-paid enterprise agreement, with certain modifications to ensure compliance with the Fair Work Act. The modifications included amendments to the agreement to ensure that it provided for minimum rates of pay and penalty rates that were consistent with the requirements of the Act. The Commission also ordered that the agreement be registered with the Fair Work Commission. The decision was made on 19 February 2014.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established