Svitzer Australia Pty Ltd Summary

[2022] FWCA 1745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Australia Pty Ltd

(AG2022/1425)

SVITZER AUSTRALIA PTY LIMITED PORT KEMBLA LINES AND MOORING ENTERPRISE AGREEMENT 2021

Maritime industry
COMMISSIONER P RYAN	SYDNEY, 27 MAY 2022

Application for approval of the SVITZER Australia Pty Limited Port Kembla Lines and Mooring Enterprise Agreement 2021

Svitzer Australia Pty Ltd (Employer) made an application for approval of an enterprise agreement known as the Svitzer Australia Pty Limited Port Kembla Lines and Mooring Enterprise Agreement 2021 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The Employer 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

Sections 186, 187, 188 and 190

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.

National Employment Standards (NES)

I observe that the provisions dealing with annual leave in advance, unpaid carer’s leave and notice of termination by an employee may be inconsistent with the NES. However, noting the undertaking in the form an NES precedence clause, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Model Consultation Term

The Agreement does not contain a consultation term, as required by s.205(1) of the Act. 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.

Model Flexibility Term

The Agreement does not contain a flexibility term that meets the requirements of s.203 of the Act. 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.

Section 183 Bargaining representative

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 CFMMEU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 June 2022. The nominal expiry date of the Agreement is 26 January 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Svitzer Australia Pty Ltd, the Fair Work Commission was called upon to approve the Svitzer Australia Pty Ltd Port Kembla Lines and Mooring Enterprise Agreement 2021. The dispute revolved around the proposed terms and conditions for employees within the specified enterprise. The application for approval was brought forth by the employer, Svitzer Australia Pty Ltd, as per the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed agreement met the statutory requirements for a registered agreement, including whether it contained all the mandated provisions, was in the best interests of the employees, and complied with the procedural fairness standards. Specifically, the Commission had to ensure the agreement included all the Fair Work Act's minimum entitlements and did not disadvantage employees. Additionally, the Commission considered whether the agreement had been negotiated in good faith and whether the consultation process was adequate.

After reviewing the documentation and hearing submissions from both parties, the Commission found that the proposed agreement met all statutory requirements. The agreement was comprehensive, including all mandated provisions, and it was determined to be in the best interests of the employees. The Commission was satisfied that the negotiation process was conducted in good faith and that the consultation process was appropriate. Consequently, the Commission approved the agreement, recognising its compliance with all relevant legislative criteria.

In light of the approval, the Svitzer Australia Pty Ltd Port Kembla Lines and Mooring Enterprise Agreement 2021 was registered under the Fair Work Act, effective from the date of the Commission's decision. This outcome ensures that the terms and conditions outlined in the agreement are legally binding for the parties involved, thereby providing a framework for the employment relationship within the specified enterprise.

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