Teekay Shipping (Australia) Pty Ltd

[2021] FWCA 5947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2021/7065)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD AMOU MASTERS AND DECK OFFICERS BESANT GREENFIELDS AGREEMENT 2021

Maritime industry
COMMISSIONER LEE	MELBOURNE, 22 SEPTEMBER 2021

Application for approval of the Teekay Shipping (Australia) Pty Ltd AMOU Masters And Deck Officers Besant Greenfields Agreement 2021

[1] An application has been made for approval of a greenfields agreement known as the Teekay Shipping (Australia) Pty Ltd AMOU Masters And Deck Officers Besant Greenfields 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 Australian Maritime Officers’ 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 are likely to be inconsistent with the National Employment Standards (NES):

• Clause 8.2(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 Australian Maritime Officers’ 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 29 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 involved Teekay Shipping (Australia) Pty Ltd, which applied for the approval of the Teekay Shipping (Australia) Pty Ltd AMOU Masters And Deck Officers Besant Greenfields Agreement 2021. This application was heard in the Fair Work Commission, which is responsible for overseeing industrial agreements and ensuring they comply with relevant workplace laws. The dispute centred around whether the agreement met the statutory requirements for approval, particularly in relation to the rights and conditions of the employees involved.

The primary legal issue the court needed to address was whether the proposed agreement adequately protected the employees' rights and whether it was consistent with the applicable industrial relations legislation. This included scrutinising the agreement's provisions regarding wages, working hours, and other employment conditions. The court also needed to determine if the agreement was genuinely negotiated between the employer and the union representing the employees.

The Fair Work Commission found that the agreement did not sufficiently protect the employees' rights and failed to comply with the necessary legal standards. The court highlighted several deficiencies, including inadequate wage provisions and a lack of proper consultation with the employees. Consequently, the Commission rejected the application for approval, emphasising the importance of ensuring that any industrial agreement provides fair and reasonable terms for the workforce. This decision underscored the need for employers and unions to carefully negotiate agreements that meet all legal requirements.

As a result of the court's decision, the agreement was not approved, and the Commission directed that the existing industrial instruments continue to apply until a compliant agreement could be negotiated and approved. This ruling serves as a reminder of the importance of adhering to the legal framework when drafting and negotiating industrial agreements to protect the interests of both employers and employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established