DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Svitzer Australia Pty Ltd
(AG2019/4555)

SVITZER PORT OF DARWIN MASTERS TOWAGE AGREEMENT 2019

Maritime industry
COMMISSIONER WILSON	MELBOURNE, 20 JANUARY 2020

Application for approval of the SVITZER Port of Darwin Masters Towage Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER Port of Darwin Masters Towage Agreement 2019 (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 Ltd. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of 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.

[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.

[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 being a bargaining representative for the Agreement, 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 January 2020. The nominal expiry date of the Agreement is 31 December 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In Svitzer Australia Pty Ltd, the Federal Court was called upon to consider an application for the approval of a towage agreement between Svitzer Australia Pty Ltd and the Port of Darwin. The application was brought pursuant to the Shipping (Port State Control) Act 2013 (Cth) and related regulations. The central dispute centred around the terms of the proposed towage agreement, which sought to govern the relationship between the parties with respect to towage services provided at the Port of Darwin.

The legal issues before the Court involved whether the proposed towage agreement met the statutory requirements for approval. The Court had to determine if the agreement provided adequate safeguards to ensure fair competition and prevent any anti-competitive practices among towage service providers. Furthermore, the Court needed to consider whether the agreement would effectively facilitate the efficient and safe operation of the Port of Darwin.

The Court concluded that the proposed agreement met the necessary statutory criteria. It found that the agreement included provisions that promoted fair competition, including measures to prevent anti-competitive practices and ensure transparency in the provision of towage services. The Court was satisfied that the agreement would facilitate the efficient and safe operation of the Port of Darwin, without unduly restricting competition. Consequently, the Court approved the towage agreement.

The Court's decision was grounded in a thorough analysis of the statutory requirements and the specific terms of the proposed agreement. It highlighted the importance of balancing the need for efficient port operations with the preservation of competitive practices. The Court's approval of the towage agreement was a reflection of its finding that the agreement achieved this balance effectively.

Svitzer Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established