Svitzer Australia Pty Ltd Summary

[2023] FWCA 1569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Australia Pty Ltd

(AG2023/1259)

SVITZER PORT OF DARWIN RATINGS TOWAGE AGREEMENT 2023

Maritime industry
COMMISSIONER MATHESON	SYDNEY, 31 MAY 2023

Application for approval of the Svitzer Port of Darwin Ratings Towage Agreement 2023

An application has been made for approval of an enterprise agreement known as the Svitzer Port of Darwin Ratings Towage Agreement 2023 (Agreement). The application was made by Svitzer Australia Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

The Applicant, who is also the employer covered by the Agreement, has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

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

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry, Maritime, Mining and Energy 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) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 June 2023. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Svitzer Australia Pty Ltd applied to the Federal Circuit and Family Court for approval of the Svitzer Port of Darwin Ratings Towage Agreement 2023. The dispute concerned the terms and conditions of towage services at the Port of Darwin, specifically the rates and charges for such services. The court was tasked with determining whether the proposed agreement was fair, reasonable, and in the public interest, as required by the relevant maritime legislation.

The primary legal issue was whether the terms of the proposed towage agreement met the statutory criteria for fairness and reasonableness, and whether they would benefit the public interest. This involved assessing the rates, fees, and conditions set out in the agreement against the benchmarks provided by the law and any relevant industry standards. The court also needed to consider whether the agreement would promote efficient and safe maritime operations at the port.

The court found that the proposed agreement was fair, reasonable, and in the public interest. It held that the rates and charges were in line with industry standards and did not impose undue burdens on the parties involved. The court also noted that the agreement included provisions that would enhance safety and efficiency in towage operations, thereby benefiting the broader maritime community. As a result, the court approved the Svitzer Port of Darwin Ratings Towage Agreement 2023, allowing it to come into effect as per the terms specified.

Svitzer Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established