Svitzer Growth Projects Pty Ltd

[2023] FWCA 3069

[2023] FWCA 3069

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Growth Projects Pty Ltd

(AG2023/2178)

SVITZER GROWTH PROJECTS PTY LTD ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT EASTON	SYDNEY, 21 SEPTEMBER 2023

Application for approval of the Svitzer Growth Projects Pty Ltd Enterprise Agreement 2023.

1. Svitzer Growth Projects Pty Ltd (the Employer) has made an application for the approval of the Svitzer Growth Projects Pty Ltd Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

1. The Agreement provides rates of pay between 127.20% - 184.97% above the Marine Towage Award 2020 (the Award). By its terms the Agreement excludes the Award and is silent on nearly all award provisions. Instead employees receive an annualised salary which essentially compensates for all award entitlements and penalties.

1. The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) asked to be heard on whether the Agreement should be approved. The MUA was not a Bargaining Representative for the making of the Agreement but is able to represent employees employed in the marine towage industry.

1. The MUA did not claim to have any members who would be immediately covered by the Agreement should it be approved. The MUA relied on s.590 of the Act and the broad power available to the Commission as to how it informs itself in relation to matters before it. The MUA called in aid the observation of the Full Bench in CFMEU v Collinsville Coal Operations Pty Ltd (2014) 246 IR 21, [2014] FWCFB 7940 (“Collinsville”) at [75]:

“We would make the observation however, that the Commission may choose, in a particular case, to hear from an employee organisation or any other person about the approval of an agreement even though the organisation or person may not otherwise have a right to be heard. The Commission has a broad power to inform itself in relation to any matter in such manner as it considers appropriate, including by inviting oral or written submissions from a person of organisation. In this case the Senior Deputy President chose to exercise that power by permitting the CFMEU to be heard on the question of whether the Agreement passed the BOOT.”

[Footnote omitted]

1. The Employer opposed the MUA’s application, arguing that the MUA has no right to be heard, which is conceded by the MUA in any event.

1. The Employer accepted that that the Commission has a discretion to hear from the MUA but said that in the statutory bargaining context I should not exercise my discretion in the MUA’s favour – relying on the Commission’s earlier decisions in Collinsville at [65], MGI Piling (NSW) Pty Ltd and Ors [2015] FWC 7345 at [19]-[20], CFMEU v MGI Piling (NSW) Pty Ltd & Ors[2016] FWCFB 2654, e20 Pty Ltd [2019] FWC 1145 at [11], Monadelphous Engineering Pty Ltd [2019] FWC 4471 at [20] and in Decmil Australia Pty Ltd [2019] FWC 4199 at [20]-[22].

1. The Employer argued that the MUA is not in a position to substantively assist or provide any further detail regarding the pre-approval requirements and is not likely to provide any further information regarding the assessment of the BOOT than would already be available to the Commission through the use of its own internal resources.

1. On 11 July 2023 I approved the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023 (AE520720). In the bargaining process for the Svitzer Australia Pty Limited National Towage Enterprise Agreement 2023 most matters were hotly contested and the bargaining itself was lengthy and troubled. The MUA was a bargaining representative in that process.

1. Even though the Employer is a different Svitzer entity, I decided that the obligations under s.577 of the Act were most appropriately met by inviting the MUA to make submissions on the application of the BOOT.

BOOT: Casual employees on weekends and public holidays

1. The MUA submitted that the Agreement does not pass the BOOT for casual employees in certain circumstances:

   “…it is reasonably foreseeable that a casual employee engaged as a rating could be engaged to work a 16 hour shift on a Saturday, Sunday or a Public Holiday. Under the Award, they would be paid $1020.36 for a shift performed on a Saturday and $1053.28 for a shift performed on a Sunday or a Public Holiday. In contrast, under the Agreement any casual rating so engaged would be paid $598.24 at Esperance and $750.38 at Bunbury Port. It is axiomatic that they would be worse off under the Agreement.”

1. The Employer submitted it is not reasonably foreseeable that a casual employee would work 16 hours on a weekend or public holiday, and in any event that the MUA’s analysis is not correct:

(a)at the test time the award rate of pay for ordinary hours worked by a casual rating was $26.33 per hour on a Saturday or Sunday and $39.50 on a public holiday. The MUA’s figures have been calculated on hourly rates of $49.37 and $65.83 respectively, which are payable for overtime not ordinary hours; and

(b)in order for a casual to receive overtime rates on a Saturday, Sunday or public holiday they need to have already worked in excess of 35 hours in that same week. Any 'shortfall' in payments for overtime worked on the Saturday, Sunday or public holiday is greatly exceeded by the $20 plus per hour paid in excess of the Award rate for the first 35 hours worked in the week.

1. I was concerned that neither the MUA’s calculations nor the Employer’s calculations were completely correct. The Commission provided further detailed calculations to the Employer and the MUA and each was invited to respond.

1. The Employer insisted that casual employs were better off overall under the terms of the Agreement, that an undertaking was not required, but provided an undertaking that puts the matter beyond contest.

1. The MUA did not make any further submissions.

1. My concern has been addressed by the Employer’s undertaking and the BOOT is satisfied for casual employees.

BOOT: casual employees performing emergency towage work

1. The MUA also argued that any casual rating engaged to perform emergency towage operations would be better off under the Award than under the Agreement. The MUA did not explain its submission. I am satisfied that the daily rate payable under the Agreement is greater than both the casual hourly rate and fixed trip rate that would be otherwise payable under the Award.

BOOT: Full-time employees

1. In its written submission the MUA suggests that “it is very difficult to conduct an analysis for a full-time employee to assess if they are better off overall under the Agreement”. Instead of providing comparisons of overall conditions the MUA listed Agreement terms that are potentially less favourable than the Award:

   “a. The Agreement provides that Full-time employees are engaged to work 38 ordinary hours per week BUT the Agreement also provides that all employees are required to work “reasonable additional hours” which are unpaid in addition to their ordinary hours;

   b. Ordinary hours can be worked at any time on any day and there are no limits on the length of any shift in a day;
   c. Full-time employees are entitled to 182 duty free days per year or to proportionate leave for any period continuous service of less than a year which an additional 28 days of leave to give effect to the 35 hour week but Full-time employees are required to work an average of 38 ordinary hours per week, not 35 ordinary hours; and
   d. While Full-time are entitled to an aggregate of 77 hours of rest in any 7 day period, this does not equate to time away from the workplace and can be rest within a period of time in which someone is required to be at work on standby.”

1. The MUA said that “in the circumstances set out above, the FWC cannot be satisfied that a Full-time employee is better off overall under the Agreement than under the Award.”

1. The first thing to note is that the MUA has not identified a scenario in which a full-time employee is not better off overall under the Agreement.

1. Unsurprisingly, the Employer responded to the MUA’s observations by relying on the provisions of the Agreement that are more advantageous - most notably:

(a)the significantly higher wage rates;

(b)the requirement for the Employer to provide 182 days of free duty per year (being 14 more days than the Award) coupled with the additional payments that must be made when additional hours are worked on days free of duty;

(c)the requirement that the Employer ensures employees have a minimum aggregate rest of 77 hours in 7 days, of which there is no equivalent under the Award; and

(d)the requirement that any additional hours be “reasonable”.

1. The minimum salary for a full-time Rating under the Award is $50,679.20 – which is $27.85 per hour for a 35-hour week. The corresponding minimum salary under the Agreement is $136,569 – being $69.11 per hour for a 38-hour week. The Employer argued:

“Having regard to the above, any working pattern that would result in employees receiving less than the Award entitlements would be so absurd (e.g. permanent 72 hour+ weekend shifts each week) that:

(a)   they could not be said to be reasonably foreseeable; and

(b) could be refused by employees in accordance with the NES.”

1. Given the substantially higher rates of pay and the rostering provisions provided for at clause 13 of the Agreement, I am satisfied that all full-time employees can be considered better off overall.

1. The BOOT is satisfied for full-time employees.

BOOT: Part-time employees

1. The MUA raised a similar argument for part-time employees and added that:

   “[Part-time employees] are only entitled to a maximum of either 84 duty free days or 85 duty free days irrespective of the pro-rata equivalent hours worked by the part-time employee when compared to a full-time employee. Further, those days may be taken only at the discretion of the employer and are not cumulative.”

1. The Employer responded that part-time employees receive equivalent pay and conditions to those of full-time employees who do the same kind of work, on a pro rata basis (clause 9.1) and that the specification of 84 or 85 duty free days in clause 9.3 of the Agreement “merely sets out a part-time employee’s predictable days free from duty in ports that cannot support a part-time roster.” Clause 9.3 of the Agreement also allows part-time employees to nominate seven days free of duty each month, which is not at the discretion of the employer as suggested by the Union.

1. The BOOT is satisfied for part-time employees.

1. The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

1. Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

1. I note that Clauses 31.2 and 31.4(b) – Redundancy are potentially inconsistent with the National Employment Standards (NES). Noting the Clause 3 – NES Precedence Clause of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. At the request of the Employer I have made an order (PR766484) restricting the publication of the personal details of the employee representatives who signed the version of the Agreement provided to the Commission. As such the published version of the Agreement will have these details redacted. Section 594 allows for restricted publication of documents if the Commission is satisfied that it is desirable to do so because of the confidential nature of matters contained in documents lodged with the Commission (per s.594(1)(c)). The Employer provided reasons for this order to be made and I am satisfied that it is desirable to make the orders sought. The redaction of the details of the employee representatives that signed the agreement is not inconsistent with the Commission's requirement under s.601(4)(b) (per Australian Workers' Union, The (002N) v Oji Foodservice Packaging Solutions (Aus) Pty Ltd[2018] FWCFB 7501 at [68]).

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 September 2023. The nominal expiry date of the Agreement is 21 September 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE521599 PR766481>