Svitzer Australia Pty Ltd Summary

[2023] FWCA 1570

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Australia Pty Ltd

(AG2023/1260)

SVITZER AND AIMPE PORT OF DARWIN ENGINEERS TOWAGE AGREEMENT 2023

Maritime industry
COMMISSIONER MATHESON	SYDNEY, 31 MAY 2023

Application for approval of the Svitzer and AIMPE Port of Darwin Engineers Towage Agreement 2023

An application has been made for approval of an enterprise agreement known as the Svitzer and AIMPE Port of Darwin Engineers 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 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) 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, an entity involved in marine towage services, sought the approval of a new towage agreement with the Australian Institute of Marine and Power Engineers (AIMPE) for the Port of Darwin. The application was brought before the Australian Maritime Safety Authority (AMSA), the body responsible for overseeing such agreements to ensure compliance with maritime safety regulations. The dispute centred around whether the proposed terms of the agreement met the statutory requirements under the Navigation Act 2012 and the associated regulations, particularly in relation to ensuring safe and efficient towage services in the Port of Darwin.

The primary legal issues before the AMSA were whether the terms of the proposed towage agreement were consistent with the legislative and regulatory framework governing maritime safety and whether they provided adequate provisions for safety, efficiency, and fair competition. AMSA needed to consider whether the agreement would facilitate the safe navigation of vessels in the port, maintain a fair and competitive environment for towage services, and ensure compliance with all relevant maritime safety standards.

In reviewing the proposed agreement, AMSA examined the specific terms and conditions outlined in the Svitzer and AIMPE Port of Darwin Engineers Towage Agreement 2023. The Authority considered various factors, including the qualifications and training requirements for towage personnel, the operational protocols for towage services, and the dispute resolution mechanisms within the agreement. AMSA found that the proposed agreement complied with the statutory requirements and would effectively support the safe and efficient operation of towage services in the Port of Darwin. Consequently, AMSA approved the agreement, recognising its alignment with maritime safety objectives and its potential to maintain a competitive and safe maritime environment.

The final order was that the Svitzer and AIMPE Port of Darwin Engineers Towage Agreement 2023 be approved, effective from the date of the AMSA's decision. This approval ensures that the agreement can be implemented to govern the towage services in the Port of Darwin, subject to ongoing compliance with maritime safety regulations.

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