Svitzer Terminals Australia Pty Limited T/A Svitzer

[2023] FWCA 742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Svitzer Terminals Australia Pty Limited T/A Svitzer

(AG2023/462)

SVITZER TERMINALS (DAMPIER) RATINGS ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 MARCH 2023

Application for approval of the Svitzer Terminals (Dampier) Ratings Enterprise Agreement 2023

An application has been made for approval of a greenfields agreement known as the Svitzer Terminals (Dampier) Ratings Enterprise Agreement 2023 (the Agreement). The application was made by Svitzer Terminals Australia Pty Limited T/A Svitzer pursuant to s 185 of the Fair Work Act 2009 (the Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s 187(5)(a) of the Act, I am satisfied that the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (the organisation) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisation and that the Agreement covers it.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 15 March 2023. The nominal expiry date of the Agreement is 8 March 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved Svitzer Terminals Australia Pty Limited trading as Svitzer, the applicant, who sought approval for the Svitzer Terminals (Dampier) Ratings Enterprise Agreement 2023. The application was made under the Fair Work Act 2009, and the Commission was required to determine whether the agreement met the legal criteria for registration. The agreement in question was proposed to govern the employment terms and conditions for certain employees of Svitzer in Dampier.

The legal issues central to this case included whether the agreement had been made in accordance with the mandatory requirements set forth in the Fair Work Act, whether it included all the prescribed terms, and whether it complied with the provisions concerning good faith bargaining. Specifically, the Commission needed to assess whether the agreement was genuinely negotiated between the parties, whether it provided for a fair and equitable resolution of the terms and conditions of employment, and whether it met the standards of procedural fairness.

In delivering its decision, the Fair Work Commission carefully examined the evidence and submissions provided by both parties. The Commission found that the agreement had been made in good faith and that all prescribed terms were included. The Commission also noted that the agreement provided for a fair and equitable resolution of the employment terms and conditions. Consequently, the Commission approved the agreement, finding that it met all the necessary legal criteria for registration.

The final orders of the Commission included the approval of the Svitzer Terminals (Dampier) Ratings Enterprise Agreement 2023, which is now registered under the Fair Work Act. The agreement will govern the employment terms and conditions for the specified employees of Svitzer in Dampier, and it will be subject to the usual processes for variations and amendments as provided by the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established