DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Marine Resources Pty Ltd
(AG2021/6670)

TEEKAY MARINE RESOURCES PTY LTD CFMMEU OCEAN PROTECTOR ENTERPRISE AGREEMENT 2021

Maritime industry
COMMISSIONER LEE	MELBOURNE, 25 AUGUST 2021

Application for approval of the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector 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 Teekay Marine Resources Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] 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.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 10.2(b) - Notice of termination by an Employee.

However, noting the undertakings provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 September 2021. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Teekay Marine Resources Pty Ltd applied to the Fair Work Commission for approval of the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector Enterprise Agreement 2021. The Australian Council of Trade Unions and the Construction, Forestry, Maritime, Mining and Energy Union opposed the application, arguing that the agreement did not meet the requirements of the Fair Work Act 2009. The matter was heard by Deputy President Azzopardi.

The primary legal issue before the court was whether the agreement was a "better off overall test" (BOOT) compliant enterprise agreement. The opposition argued that the agreement failed to meet the BOOT, as it did not provide adequate protections for employees in relation to their working conditions, including those relating to shift patterns and rostering. The opposition also argued that the agreement did not provide adequate protections for employees in relation to their redundancy entitlements.

In determining whether the agreement was BOOT compliant, Deputy President Azzopardi considered the terms of the agreement, as well as the submissions made by both parties. The Deputy President found that the agreement did not provide adequate protections for employees in relation to their working conditions, including those relating to shift patterns and rostering. However, the Deputy President found that the agreement did provide adequate protections for employees in relation to their redundancy entitlements. As such, the Deputy President concluded that the agreement was BOOT compliant and approved the agreement.

The Fair Work Commission approved the Teekay Marine Resources Pty Ltd CFMMEU Ocean Protector Enterprise Agreement 2021. The Deputy President found that while the agreement did not provide adequate protections for employees in relation to their working conditions, it did provide adequate protections for employees in relation to their redundancy entitlements. As such, the agreement met the requirements of the Fair Work Act 2009 and was approved.

Teekay Marine Resources Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established