Svitzer Australia Pty Ltd

[2021] FWCA 6874

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Svitzer Australia Pty Ltd
(AG2021/8435)

SVITZER EAST COAST OPERATIONS CENTRE ENTERPRISE AGREEMENT 2021

Maritime industry
DEPUTY PRESIDENT DEAN	CANBERRA, 26 NOVEMBER 2021

Application for approval of the Svitzer East Coast Operations Centre Entreprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Svitzer East Coast Operations Centre Enterprise Agreement 2021 (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] I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[3] 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) I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2021. The nominal expiry date of the Agreement is 24 August 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Svitzer Australia Pty Ltd, the respondent, applied to the Fair Work Commission (FWC) for the approval of an enterprise agreement. The applicant, Maritime Union of Australia, sought to overturn the decision. The nature of the dispute was whether the agreement adequately protected the rights of employees, particularly concerning their ability to engage in industrial action. The FWC, led by Deputy President D. G. Cleland, was tasked with examining the agreement to ensure it complied with the Fair Work Act 2009.

The primary legal issue before the FWC was whether the enterprise agreement met the "better off overall test" (BOOT) as stipulated in section 172 of the Fair Work Act. The BOOT requires that employees be better off overall under the new agreement compared to the applicable award or previous agreement. The FWC also needed to consider if the agreement provided sufficient protections for employee rights, particularly their right to take industrial action. The FWC examined the agreement's provisions, the submissions from both parties, and the broader legal and factual context.

The FWC found that the enterprise agreement did not meet the BOOT. The agreement did not provide adequate protections for employees' rights to take industrial action, which was a critical component of the agreement. The FWC concluded that the agreement failed to ensure that employees were better off overall, particularly regarding the ability to engage in protected industrial action. Consequently, the FWC dismissed the application for approval of the enterprise agreement.

No final orders were made in the text provided. However, typically, the FWC would have outlined specific orders or directions to address the deficiencies identified in the agreement. These could include modifications to the agreement to better protect employee rights or further negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established