DECISION

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

Svitzer Australia Pty Limited
(AG2015/3186)

SVITZER AUSTRALIA PTY LIMITED LAUNCH AND MOORING OPERATIONS - PORT OF FREMANTLE ENTERPRISE AGREEMENT 2014

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 13 JULY 2015

Application for approval of the SVITZER Australia Pty Limited Launch and Mooring Operations - Port of Fremantle Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Australia Pty Limited Launch and Mooring Operations – Port of Fremantle Enterprise Agreement 2014(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 30 June 2015. The application included a Statutory Declaration of Albert Umansky made on behalf of the Employer and dated 26 June 2015 (the Declaration). The Declaration stated that the Agreement was made on 29 May 2015. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the application was made after the 14 day period, and an explanation for the late lodgement has been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[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 13 July 2015. 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. I also note that the file has included a Statutory Declaration of Carl Frank YOUNG 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 7 and consultation terms at clauses 9 and 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 and the AMOU, being bargaining representatives for the Agreement, has each given notice under s.183 of the Act that each wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the MUA and the AMOU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 20 July 2015. The nominal expiry date of the Agreement as specified in clause 2.2 of the Agreement, is 30 April 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Svitzer Australia Pty Limited, sought approval of the Svitzer Australia Pty Limited Launch and Mooring Operations - Port of Fremantle Enterprise Agreement 2014 from the Fair Work Commission. The applicant argued that the agreement, which proposed changes to the terms and conditions of employment for its employees, should be approved under section 231 of the Fair Work Act 2009. The applicant claimed that the proposed changes were necessary to ensure the long-term viability of the business and to address the current and future needs of the company.

The legal issues before the court were whether the proposed agreement met the requirements of the Fair Work Act 2009 and whether it was in the best interests of the employees. The court had to consider whether the agreement provided for fair and reasonable terms and conditions of employment, whether it was free from coercion and undue influence, and whether it provided for the protection of employees' rights and interests. The court also had to consider whether the agreement was likely to promote workplace harmony and productivity.

The court found that the proposed agreement met the requirements of the Fair Work Act 2009 and was in the best interests of the employees. The court considered that the agreement provided for fair and reasonable terms and conditions of employment, was free from coercion and undue influence, and provided for the protection of employees' rights and interests. The court also found that the agreement was likely to promote workplace harmony and productivity. The court was satisfied that the agreement provided for appropriate mechanisms for the resolution of workplace disputes and provided for the protection of employees' health and safety. The court approved the proposed agreement, subject to certain modifications to ensure compliance with the Fair Work Act 2009.

The court made orders approving the proposed agreement, subject to certain modifications. The court ordered that the agreement be registered with the Fair Work Commission and that it would come into effect on a date specified in the agreement. The court also ordered that the agreement be published on the Fair Work Commission's website and that copies be provided to the parties and their employees. The court noted that the agreement was subject to further review and that any disputes arising under the agreement could be referred to the Fair Work Commission for resolution.

Svitzer Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established