Teekay Shipping (Australia) Pty Ltd

[2017] FWCA 5411

[2017] FWCA 5411

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd
(AG2017/3245)

TEEKAY SHIPPING (AUSTRALIA) PTY LIMITED SEAGOING RATINGS DRY CARGO ENTERPRISE AGREEMENT 2015

Maritime industry
DEPUTY PRESIDENT KOVACIC	CANBERRA, 19 OCTOBER 2017

Application for approval of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015.

[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 2015 (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] Subject to concerns that have been addressed by way of undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from Teekay Shipping (Australia) Pty Ltd. In accordance with s.191(1) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings are attached to this decision.

[4] The application was not lodged within 14 days after the agreement was made. The Applicant advised that the Agreement was not lodged within the 14 day period due to ongoing information technology issues with sending emails encountered by the Maritime Union of Australia (MUA). Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

[5] 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.

[6] 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.

[7] The MUA 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) I note that the Agreement covers the organisation.

[8] The Agreement has a nominal expiry date of 7 October 2017 which has already passed. Against that background, the Applicant advised the Fair Work Commission (the Commission) that it nevertheless wished to press the application for approval of the agreement. The issue of whether the Commission can approve an agreement that after it has passed its nominal expiry date was considered by Vice President Lawler in respect of an application by the Independent Education Union of Australia 1 in the following terms:

“[4] I have considered whether it is an impediment to the approval of an enterprise agreement under the FW Act if the nominal expiry date of the agreement has passed before the application for approval comes to be considered. I have concluded that it is not. I note that there is nothing in the language of the Act that expressly prevents approval of an enterprise agreement that has already passed its nominal expiry by the time the application for approval comes to be considered. I can see nothing in the FW Act that impliedly suggests that approval cannot be given in such circumstances. On the contrary, s.54 provides:

“54 When an enterprise agreement is in operation

(1) An enterprise agreement approved by FWA operates from:

(a) 7 days after the agreement is approved; or

(b) if a later day is specified in the agreement—that later day.

(2) An enterprise agreement ceases to operate on the earlier of the following days:

(a) the day on which a termination of the agreement comes into operation under section 224 or 227;

(b) the day on which section 58 first has the effect that there is no employee to whom the agreement applies.

Note: Section 58 deals with when an enterprise agreement ceases to apply to an employee.

(3) An enterprise agreement that has ceased to operate can never operate again.”

[5] Section 54 contemplates that an enterprise agreement, once it begins to operate as a result of approval by FWA, continues to operate, including beyond its nominal expiry date, unless and until it is terminated or replaced by another enterprise agreement as provided for in s.54(2). It seems to me consistent with the purpose of the Act that an enterprise agreement made in good faith in accordance with the requirements of the Act should be approved. That is the case here. I can see no proper basis upon which the present application for approval can (let alone ought) be rejected only because the nominal expiry date has passed.”

[9] I agree with and adopt the approach followed by the Vice President.

[10] Accordingly, the Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 October 2017. The nominal expiry date of the Agreement is 7 October 2017.

DEPUTY PRESIDENT

<Price code J, AE425776  PR596935>

Annexure A:

 1   [2012] FWAA 385

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