DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Svitzer Australia Pty Limited T/A Svitzer Australia
(AG2016/3442)

SVITZER AUSTRALIA PTY LIMITED LAUNCH AND MOORING OPERATIONS – PORT OF FREMANTLE ENTERPRISE AGREEMENT 2016

Port authorities
COMMISSIONER HARPER-GREENWELL	MELBOURNE, 28 JULY 2016

Application for approval of the SVITZER Australia Pty Limited Launch and Mooring Operations - Port of Fremantle Enterprise Agreement 2016.

[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 2016 (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 T/A Svitzer Australia. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement. However, for the avoidance of confusion, clause 11.3 of the Agreement remains binding on the parties covered by the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Australian Maritime Officers’ Union and The Maritime Union of Australia being bargaining representatives for the Agreement, 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 these organisations.

[7] The Agreement was approved on 28 July 2016 and, in accordance with s.54, will operate from 4 August 2016. The nominal expiry date of the Agreement is 30 April 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Svitzer Australia Pty Limited, trading as Svitzer Australia, which sought approval for the Svitzer Australia Pty Limited Launch and Mooring Operations - Port of Fremantle Enterprise Agreement 2016. The Fair Work Commission (FWC) was the court that heard the matter. The primary dispute centred around the procedural fairness and the substantive fairness of the enterprise agreement.

The legal issues before the FWC were whether the agreement was made in accordance with the proper procedures as outlined in the Fair Work Act 2009, and whether the agreement met the ‘better off overall test’ (BOOT) under the same Act. The applicant argued that the agreement was made fairly and met the BOOT, while no objections were raised by the employees or other parties involved.

The FWC found that the applicant had followed the correct procedural steps to achieve the agreement, including providing the necessary information to the employees and allowing for adequate consultation. The Commission also concluded that the agreement met the BOOT as it provided employees with improved conditions compared to their previous entitlements. The FWC approved the enterprise agreement on the basis of its findings.

The FWC ordered the approval of the Svitzer Australia Pty Limited Launch and Mooring Operations - Port of Fremantle Enterprise Agreement 2016. This decision ensures that the agreement is legally binding and enforceable for the parties involved.

Svitzer Australia Pty Limited T/A Svitzer Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established