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.

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.

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.

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.

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]

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Svitzer Growth Projects Pty Ltd [2023] FWCA 3069
Case: [2023] FWCA 3069
Decision Date: 21 SEPTEMBER 2023

CaseChat Overview and Summary

Svitzer Growth Projects Pty Ltd applied for the approval of the Svitzer Growth Projects Pty Ltd Enterprise Agreement 2023 before the Fair Work Commission. The agreement was aimed at regulating the employment conditions of workers within the company. The dispute centred on whether the agreement met the legal criteria for approval, including provisions on minimum wages, hours of work, and other employment terms. The Commission was tasked with determining if the agreement was in the best interests of the workers and if it complied with the relevant federal legislation.

The primary legal issues revolved around the fairness and compliance of the proposed agreement with the Fair Work Act 2009. The Commission examined whether the agreement provided for appropriate minimum wages and conditions, and if it allowed for fair and efficient workplace relations. Additionally, the court assessed whether the agreement was free from any coercion and was genuinely negotiated between the employer and the employees.

In its decision, the Fair Work Commission found that the Svitzer Growth Projects Pty Ltd Enterprise Agreement 2023 was fair and compliant with the Fair Work Act 2009. The Commission concluded that the agreement provided adequate minimum wages and conditions, and that it was genuinely negotiated without any element of coercion. The court was satisfied that the agreement was in the best interests of the workers and met all the legal requirements for approval.

The Fair Work Commission approved the Svitzer Growth Projects Pty Ltd Enterprise Agreement 2023, effective from the date of the decision. The agreement was to be applied to all workers covered by it, ensuring that the terms and conditions of employment were fair and legally compliant.

Orders