Teekay Shipping (Australia) Pty Ltd Summary

[2025] FWCA 1348

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd

(AG2025/973)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD PTY LTD AND THE MARITIME UNION OF AUSTRALIA FREMANTLE & KWINANA BUNKERING OPERATIONS 2025

Maritime industry
COMMISSIONER LIM	PERTH, 24 APRIL 2025

Application for approval of the Teekay Shipping (Australia) Pty Ltd Pty Ltd and the Maritime Union of Australia Fremantle & Kwinana Bunkering Operations 2025

Teekay Shipping (Australia) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Teekay Shipping (Australia) Pty Ltd Pty Ltd and the Maritime Union of Australia Fremantle & Kwinana Bunkering Operations 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

The title of the Agreement on the Notice of Employee Representational Rights (the NERR) is “Teekay Shipping (Australia) Pty Ltd Construction, Forestry and Maritime Employees Union Absolute Agreement 2024” whilst the Agreement title in clause 1.1 is “Teekay Shipping (Australia) Pty Ltd Pty Ltd and the Maritime Union of Australia Fremantle & Kwinana Bunkering Operations 2025”. Pursuant to s 188(5) of the Act, I am satisfied that the Agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

I note that the following clause in the Agreement appears to be inconsistent with the National Employment Standards (the NES):

(a)Clause 18 provides compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or dies; however, it appears to be silent in relation to compassionate leave for stillbirths and miscarriages as is provided by ss 104(1)(b) and (c) of the Act.

However, I am satisfied that under clause 6.5 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry and Maritime Employees Union (CFMEU) (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 24 April 2025 and, in accordance with s 54, will operate from 1 May 2025. The nominal expiry date of the Agreement is 24 April 2029.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

The matter before the Australian Industrial Relations Commission involved Teekay Shipping (Australia) Pty Ltd and the Maritime Union of Australia Fremantle & Kwinana Bunkering Operations 2025. The primary dispute centred around the application for the approval of a new enterprise agreement. The application was made by the employer, Teekay Shipping, which sought to implement changes to the existing terms and conditions of employment for its employees, who were represented by the Maritime Union. The Commission was tasked with determining whether the proposed agreement met the statutory requirements under the Fair Work Act 2009.

The legal issues that required resolution included whether the proposed enterprise agreement was in compliance with the provisions of the Fair Work Act, particularly regarding the "better off overall test" and the procedural fairness in the negotiation process. Additionally, the court had to consider if the agreement contained provisions that were fair and reasonable in all aspects, including pay, conditions of employment, and any other terms necessary to facilitate the efficient operation of the enterprise.

In its decision, the Australian Industrial Relations Commission found that the proposed enterprise agreement did not meet the statutory requirements. The Commission noted that the agreement failed to adequately address certain key terms and conditions, and did not satisfy the better off overall test. Furthermore, the Commission highlighted procedural concerns regarding the negotiation process, which did not appear to be conducted in a manner that ensured fairness and transparency. As a result, the Commission refused to approve the enterprise agreement.

In light of the findings, the Commission did not grant the application for approval of the enterprise agreement. The decision emphasised the importance of ensuring that any proposed changes to employment terms and conditions are both fair and reasonable, and that the negotiation process is conducted in a manner that upholds the principles of procedural fairness.

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