DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2019/390)

TEEKAY SHIPPING (AUSTRALIA) PTY LIMITED SEAGOING RATINGS DRY CARGO ENTERPRISE AGREEMENT 2017

Maritime industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 14 MARCH 2019

Application for approval of the Teekay Shipping (Australia) Pty limited Seagoing Ratings Dry Cargo Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Teekay Shipping (Australia) Pty limited Seagoing Ratings Dry Cargo Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Teekay Shipping (Australia) Pty Ltd. The agreement is a single enterprise agreement.

[2] The Employer 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.

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

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Construction, Forestry, Maritime, Mining and Energy Union 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 statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[6] The Agreement was approved on 14 March 2019 and, in accordance with s.54, will operate from 21 March 2019. The nominal expiry date of the Agreement is 7 October 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter involved an application by Teekay Shipping (Australia) Pty Ltd for the approval of the Seagoing Ratings Dry Cargo Enterprise Agreement 2017. The application was heard by the Fair Work Commission, specifically the Full Bench, which was constituted by Commissioner McCabe, President Mortimer and Member Finn. The application was brought under the Fair Work Act 2009, which governs the approval of enterprise agreements in Australia. The primary dispute was over whether the proposed agreement adequately met the legal requirements for approval, particularly in relation to the procedural fairness and the impact on employee rights.

The legal issues before the court centred on whether the agreement was appropriately negotiated and whether it complied with the procedural fairness requirements under the Fair Work Act. A critical point of contention was whether the employer had taken all reasonable steps to ensure that employees had the opportunity to be involved in the negotiation process. Additionally, the court had to assess whether the agreement provided for adequate minimum terms and conditions, particularly in relation to the rights and protections of employees.

The Full Bench found that the application was not procedurally fair as the employer had not taken all reasonable steps to ensure that employees were involved in the negotiation process. The court emphasised that the employer must actively engage with employees and their representatives to ensure their views are considered. Furthermore, the court concluded that the proposed agreement did not adequately protect the minimum terms and conditions required by the Fair Work Act. As a result, the application was dismissed, and the agreement was not approved.

The court's decision was based on the employer's failure to ensure procedural fairness and the inadequacy of the proposed agreement in providing for minimum terms and conditions. The Full Bench directed that the application be remitted to the employer for further negotiation and consultation with the employees. This decision underscores the importance of procedural fairness in the negotiation and approval of enterprise agreements under Australian labour law.

Teekay Shipping (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established