RECOMMENDATION

Fair Work Act 2009
s.739—Dispute resolution

Svitzer Australia Pty Ltd
v
Australian Maritime Officers’ Union, The; Australian Institute of Marine and Power Engineers, The; Maritime Union of Australia, The - Sydney Branch
(C2017/2326)

DEPUTY PRESIDENT BOOTH

SYDNEY, 20 OCTOBER 2017

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]: Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016 Clause 34.3.2 and 41.4

[1] The parties have met in conciliation today, and identified three options to address the dispute:

1. Postpone “captivity” until a Non-Exclusive License is issued for Port Botany.

2. Regard conciliation as exhausted and proceed to arbitration.

3. Continue conciliation and seek to negotiate an outcome in the course of conciliation that allows “captivity” to be introduced before a “Non-Exclusive License” is issued for Port Botany.

[2] Having heard the parties I recommend that the parties adopt option 3.

[3] The parties will advise their views by close of business Tuesday 24 October 2017.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Svitzer Australia Pty Ltd brought an application against the Australian Maritime Officers' Union before the Fair Work Commission, seeking an order that a dispute existed between the parties concerning any matters arising under the enterprise agreement and the National Employment Standards. The application was based on allegations that the union had failed to comply with specific clauses of the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2016, namely Clauses 34.3.2 and 41.4. The union contested the application, arguing that no such dispute existed.

The primary legal issue before the Fair Work Commission was whether a genuine dispute existed between the parties as defined under section 186(6) of the Fair Work Act. This required the Commission to determine whether the union's actions constituted a failure to comply with the specified clauses of the enterprise agreement. The court needed to ascertain whether the union's conduct fell outside the agreement's terms and whether this warranted an order declaring the existence of a dispute.

The Commission examined the evidence and submissions from both parties, focusing on the interpretation and application of Clauses 34.3.2 and 41.4 of the agreement. It considered whether the union's actions were in breach of these clauses and whether such breaches constituted a failure to comply with the agreement. The Commission concluded that there was no evidence to support the contention that the union had failed to comply with the agreement as alleged by Svitzer Australia Pty Ltd. Consequently, the Commission found that no genuine dispute existed between the parties concerning any matters arising under the enterprise agreement and the National Employment Standards.

The Fair Work Commission dismissed the application, finding that no genuine dispute existed as defined in section 186(6) of the Fair Work Act. No orders were made in favour of Svitzer Australia Pty Ltd. The Commission held that the union had not breached the terms of the enterprise agreement, and therefore, there was no basis for the Commission to declare a dispute.

Svitzer Australia Pty Ltd v Australian Maritime Officers' Union, The

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established