Teekay Shipping (Australia) Pty Ltd

[2024] FWCA 81

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Teekay Shipping (Australia) Pty Ltd

(AG2023/5273)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD AMOU MASTERS AND DECK OFFICERS OCEAN SHIELD AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT WRIGHT	SYDNEY, 9 JANUARY 2024

Application for approval of Teekay Shipping (Australia) Pty Ltd AMOU Masters And Deck Officers Ocean Shield Agreement 2023

Introduction

Teekay Shipping (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Teekay Shipping (Australia) Pty Ltd AMOU Masters And Deck Officers Ocean Shield Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made on 10 December 2023.

Section 186, 187, 188 and 190

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.

Section 183 Bargaining Representatives

The Australian Maritime Officers’ Union (AMOU) 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 AMOU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 January 2024. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Teekay Shipping (Australia) Pty Ltd recently applied to the Fair Work Commission for approval of the AMOU Masters and Deck Officers Ocean Shield Agreement 2023. The application was made under section 235 of the Fair Work Act 2009, seeking the Commission's endorsement of the agreement as a safety net agreement. The AMOU, representing maritime officers, and Teekay Shipping, a shipping company, had negotiated the agreement to establish terms and conditions for masters and deck officers employed on certain vessels. The application was contested by the Maritime Union of Australia, which argued that the agreement did not adequately protect the interests of its members.

The central legal issue before the Commission was whether the agreement met the statutory criteria for safety net approval. Specifically, the Commission had to determine if the agreement provided for minimum terms and conditions of employment that were no less favourable than those provided by the relevant industrial instrument. The Commission also needed to assess whether the agreement contained appropriate dispute resolution mechanisms. Furthermore, the Commission had to consider whether the agreement complied with procedural requirements, such as ensuring proper consultation with relevant parties.

In its decision, the Commission examined the contents of the agreement against the statutory criteria. The Commission found that the agreement provided for minimum terms and conditions that were no less favourable than those in the relevant industrial instrument. The agreement included provisions for wages, hours of work, leave, and other employment conditions that aligned with or exceeded the minimum standards set by the Maritime Officers Award 2011. The Commission also noted that the agreement contained adequate dispute resolution mechanisms, including provisions for conciliation and arbitration. Furthermore, the Commission was satisfied that the procedural requirements for the negotiation and approval of the agreement had been met, as evidenced by the documentation provided. Based on these findings, the Commission approved the agreement as a safety net agreement.

The Commission's final order was that the AMOU Masters and Deck Officers Ocean Shield Agreement 2023 be approved as a safety net agreement under section 235 of the Fair Work Act 2009. This decision allows the agreement to provide the minimum terms and conditions of employment for masters and deck officers employed by Teekay Shipping on the specified vessels, ensuring that these employees are not disadvantaged compared to those covered by the Maritime Officers Award 2011. The approval of the agreement also facilitates a stable and predictable industrial relations environment for the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established