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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWCA 5411
Decision Date: 19 OCTOBER 2017

CaseChat Overview and Summary

Teekay Shipping (Australia) Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009, which was to apply to seafarers working on dry cargo vessels. The Australian Maritime Officers' Union and the Seafarers' Union of Australia opposed the application, arguing that the agreement failed to meet certain statutory requirements. The matter was heard by the Fair Work Commission, presided over by Deputy President E M Scullin.

The primary legal issues addressed by the commission were whether the agreement contained the requisite direct and clear statements of the terms and conditions of employment as mandated by section 234 of the Fair Work Act 2009, and whether it complied with the good faith bargaining requirement stipulated in section 228 of the same Act. The unions contended that the agreement did not sufficiently detail the terms of employment, particularly in relation to wages and conditions, and that the bargaining process lacked good faith.

In its decision, the commission found that the agreement did include the necessary direct and clear statements concerning the terms and conditions of employment, albeit with some minor deficiencies that did not undermine its overall compliance. The commission also concluded that the bargaining process, while not ideal, did not breach the good faith requirement. Consequently, the commission approved the enterprise agreement, emphasising the importance of fair and clear terms in maritime employment agreements and the necessity for good faith in the bargaining process.

The Fair Work Commission ordered the approval of the Teekay Shipping (Australia) Pty Limited Seagoing Ratings Dry Cargo Enterprise Agreement 2015, subject to the minor modifications and clarifications recommended by the commission. The decision underscored the importance of ensuring that maritime employment agreements are clear, fair, and the product of good faith bargaining.

Orders