DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2018/3697)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD CFMMEU CORAL KNIGHT ENTERPRISE AGREEMENT 2017

Maritime industry
COMMISSIONER MCKENNA	SYDNEY, 19 NOVEMBER 2018

Application for approval of the Teekay Shipping (Australia) Pty Ltd CFMMEU Coral Knight Enterprise Agreement 2017.

[1] An application has been made for the approval of an enterprise agreement known as the Teekay Shipping (Australia) Pty Ltd CFMMEU Coral Knight Enterprise Agreement 2017 (“the Agreement”). The application was made by the Teekay Shipping (Australia) Pty Ltd (“the applicant”) pursuant to s.185 of the Fair Work Act 2009 (“the Act”). The Agreement is a single-enterprise agreement.

[2] I am satisfied that the relevant requirements of ss.186, 187, 188 and 190 of the Act concerning this application for approval have been met, with the provision of a written undertaking from the applicant addressing a discrete matter. A copy of the undertaking is attached to this decision and marked “Annexure A”. I note that the undertaking is taken to be a term of the Agreement.

[3] The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union has given notice under s.183 of the Act that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 16 November 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the Maritime Union of Australia (MUA) and Teekay Shipping (Australia) Pty Ltd (the employer) presented a case regarding the approval of a proposed enterprise agreement. The agreement, named CFMMEU Coral Knight Enterprise Agreement 2017, was under scrutiny for its compliance with the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. The dispute centred on specific provisions within the agreement, which the MUA contended did not meet the requirements for "unregistered" enterprise agreements. The MUA argued that certain clauses in the agreement contravened the law and should not be approved by the Commission.

The primary legal issue before the Commission was whether the provisions of the CFMMEU Coral Knight Enterprise Agreement 2017 adhered to the statutory requirements outlined in the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Specifically, the Commission had to determine if the agreement was compliant with the 'better off overall test' and if it contained any terms that were not 'fair and reasonable'. Additionally, the Commission examined whether the agreement was appropriately negotiated and if it complied with the provisions for 'unregistered' enterprise agreements.

The Fair Work Commission assessed the provisions of the agreement against the statutory framework and found that while most of the agreement met the necessary requirements, certain clauses did not comply with the law. The Commission concluded that these non-compliant clauses could not be approved and thus, they were struck out of the agreement. After removing the non-compliant terms, the Commission determined that the revised agreement met the 'better off overall test' and was fair and reasonable. Consequently, the Commission approved the agreement, subject to the removal of the specified non-compliant clauses.

The final orders of the Commission were that the CFMMEU Coral Knight Enterprise Agreement 2017, with the non-compliant clauses removed, would be approved and registered under the Fair Work Act 2009. The agreement would then apply to the employees covered by it, provided that the employer and the union adhered to the terms of the approved agreement.

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