Teekay Shipping (Australia) Pty Ltd Summary

[2021] FWCA 5969

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2021/7062)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD CFMMEU DEFENCE SERVICES STOKER GREENFIELDS ENTERPRISE AGREEMENT 2021

Maritime industry
COMMISSIONER LEE	MELBOURNE, 23 SEPTEMBER 2021

Application for approval of the Teekay Shipping (Australia) Pty Ltd CFMMEU Defence Services Stoker Greenfields Enterprise Agreement 2021

[1] An application has been made for approval of a greenfields agreement known as the Teekay Shipping (Australia) Pty Ltd CFMMEU Defence Services Stoker Greenfields Enterprise Agreement 2021 (the Agreement). The application was made by Teekay Shipping (Australia) Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 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 Construction, Forestry, Maritime, Mining and Energy Union 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.

[3] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[4] 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.

[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 undertaking 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] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with the Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 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

The case involves Teekay Shipping (Australia) Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The matter was before the Fair Work Commission and concerns the approval of the Teekay Shipping (Australia) Pty Ltd CFMMEU Defence Services Stoker Greenfields Enterprise Agreement 2021. The union sought approval for the agreement, while the employer raised objections.

The primary legal issue before the Commission was whether the agreement met the requirements of section 232 of the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for the payment of wages and conditions of employment that were no less favourable than the applicable award or safety net award. Additionally, the Commission had to consider whether the agreement was made in good faith and if it complied with the procedural fairness requirements.

The Commission found that the agreement did not meet the requirements of section 232. The employer argued that the agreement provided for a reduction in wages and conditions for certain employees, which was not in line with the applicable award. The Commission agreed and found that the agreement did not provide for the payment of wages and conditions of employment that were no less favourable than the applicable award. The Commission also found that the agreement was not made in good faith as it contained provisions that were detrimental to employees.

As a result, the Commission did not approve the agreement. The employer and the union were directed to negotiate in good faith to reach an agreement that met the requirements of the Act. The Commission emphasised the importance of fair and reasonable agreements that provide for the protection of employees' rights and interests. The Fair Work Commission's decision highlights the need for employers and unions to ensure that any enterprise agreement they negotiate and seek to have approved by the Commission meets the requirements of the Fair Work Act 2009.

Teekay Shipping (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established