Teekay Shipping (Australia) Pty Ltd

[2021] FWCA 5946

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2021/7061)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD AMOU MASTERS AND DECK OFFICERS STOKER 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 Stoker 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 Stoker 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

Teekay Shipping (Australia) Pty Ltd applied to the Fair Work Commission for the approval of the Teekay Shipping (Australia) Pty Ltd AMOU Masters and Deck Officers Stoker Greenfields Agreement 2021. The Australian Maritime Officers' Union (AMOU) sought to have the agreement declared as a certified agreement under the Fair Work Act 2009. The dispute centred on the validity and enforceability of the agreement, which was intended to regulate the terms and conditions of employment for masters and deck officers employed by Teekay Shipping.

The primary legal issues before the Commission were whether the agreement met the requirements for approval as a certified agreement and whether the agreement had been genuinely negotiated and agreed upon by the parties. This involved assessing whether the agreement complied with the statutory criteria set out in the Fair Work Act and the Fair Work Regulations 2009, including whether it had been negotiated in good faith, and whether it was in the best interests of the employees. The Commission also considered the evidence of the parties regarding the negotiation process and the content of the agreement.

In its decision, the Fair Work Commission found that the agreement was negotiated in good faith and met the statutory criteria for approval. The Commission noted that the AMOU had provided evidence of the negotiation process and the content of the agreement, and that the agreement contained terms and conditions that were fair and reasonable. The Commission was satisfied that the agreement was in the best interests of the employees and was likely to promote harmonious, productive, and cooperative workplace relations. As a result, the Commission approved the agreement as a certified agreement under the Fair Work Act.

The Fair Work Commission approved the Teekay Shipping (Australia) Pty Ltd AMOU Masters and Deck Officers Stoker Greenfields Agreement 2021 as a certified agreement. The agreement will now regulate the terms and conditions of employment for masters and deck officers employed by Teekay Shipping, and will be binding on the parties until it is terminated or replaced by a new agreement. The Commission's decision provides clarity and certainty for both the employer and the employees, and ensures that the agreement is legally enforceable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established