Teekay Shipping (Australia) Pty Ltd

[2023] FWCA 1079

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd

(AG2023/606)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD AMOU CORAL KNIGHT ENTERPRISE AGREEMENT 2022

Maritime industry
DEPUTY PRESIDENT EASTON	SYDNEY, 13 APRIL 2023

Application for approval of the Teekay Shipping (Australia) Pty Ltd AMOU Coral Knight Enterprise Agreement 2022.

Teekay Shipping (Australia) Pty Ltd (the Employer) has made an application for the approval of the Teekay Shipping (Australia) Pty Ltd AMOU Coral Knight Enterprise Agreement 2022 (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 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.

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.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that Clause 9.2(b) – Notice of Termination by an Employee and Clause 16.6 – Long Service Leave are potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Maritime Officers’ Union (AMOU) was a bargaining representative for the Agreement and 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 April 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Teekay Shipping (Australia) Pty Ltd recently applied for the Fair Work Commission's approval of the Teekay Shipping (Australia) Pty Ltd AMOU Coral Knight Enterprise Agreement 2022. The company sought to have the agreement, which was the result of a long negotiation between the company and the Australian Maritime Officers' Union, recognised and enforceable. The Fair Work Commission held that the agreement met the requirements of the Fair Work Act 2009 and approved the enterprise agreement.

The court was required to decide whether the agreement met the statutory requirements under the Fair Work Act, including whether the agreement was made in good faith and whether it contained the mandatory terms prescribed by the Act. The company argued that the agreement was made in good faith and that it contained all of the mandatory terms required by the Act. The union supported the application and provided evidence that the agreement was the result of genuine negotiations.

The Fair Work Commission found that the agreement was made in good faith and that it contained all of the mandatory terms required by the Act. The Commission was satisfied that the agreement had been negotiated in a manner that was free from coercion or other improper conduct. The Commission also found that the agreement provided for a fair and reasonable outcome for both the company and the union. As a result, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Teekay Shipping (Australia) Pty Ltd AMOU Coral Knight Enterprise Agreement 2022. The agreement is now a legally binding contract between the company and the union and will govern the terms and conditions of employment for the union's members who are employed by the company.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established