DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Svitzer Australia Pty Ltd
(AG2019/4563)

SVITZER AND AIMPE PORT OF DARWIN ENGINEERS TOWAGE AGREEMENT 2019

Port authorities
COMMISSIONER WILSON	MELBOURNE, 20 JANUARY 2020

Application for approval of the SVITZER and AIMPE Port of Darwin Engineers Towage Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the SVITZER and AIMPE Port of Darwin Engineers 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 Institute of Marine and Power Engineers 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

Svitzer Australia Pty Ltd applied to the Federal Circuit Court of Australia for approval of a new towage agreement between itself and the Australian Industrial Mechanical and Electrical Trades Employees' Union (AIMPE). The dispute arose from the negotiation and proposed implementation of the Svitzer and AIMPE Port of Darwin Engineers Towage Agreement 2019. The agreement aimed to govern the terms and conditions of employment for engineers working on tugboats in the Port of Darwin.

The primary legal issue before the court was whether the proposed agreement was consistent with the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009. Specifically, the court needed to determine if the agreement was a "single interest employer agreement" and if it was made in good faith and covered the appropriate employee group. The court also had to consider whether the agreement met the criteria for approval, including that it did not undermine the ability of employees to protect their interests and that it was not contrary to public policy.

In delivering the judgment, the court found that the proposed agreement met all the necessary criteria. The agreement was deemed to be a single interest employer agreement as it was made between Svitzer Australia Pty Ltd and the AIMPE, representing the relevant employees. The court was satisfied that the agreement was made in good faith and that it covered the appropriate group of employees. Furthermore, the court determined that the agreement did not undermine the employees' ability to protect their interests and was not contrary to public policy. Consequently, the court approved the agreement, and it came into effect as of the date of the judgment.

The final orders of the court included the approval of the Svitzer and AIMPE Port of Darwin Engineers Towage Agreement 2019, effective from the date of the judgment. The court directed that the agreement be registered with the Fair Work Commission and that it be given effect in accordance with its terms. The approval was contingent upon compliance with all relevant provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

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