Teekay Shipping (Australia) Pty Ltd Summary

[2024] FWCA 4316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Teekay Shipping (Australia) Pty Ltd

(AG2024/4361)

TEEKAY SHIPPING (AUSTRALIA) PTY LTD FREMANTLE BUNKERING FACILITY OFFICERS GREENFIELDS AGREEMENT 2024

Maritime industry
COMMISSIONER LIM	PERTH, 4 DECEMBER 2024

Application for approval of the Teekay Shipping (Australia) Pty Ltd Fremantle Bunkering Facility Officers Greenfields Agreement 2024.

Teekay Shipping (Australia) Pty Ltd (the Applicant) has made an application for the approval of a greenfields agreement known as the Teekay Shipping (Australia) Pty Ltd Fremantle Bunkering Facility Officers Greenfields Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).

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) (the Regulations). 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.

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. I am satisfied that each of the requirements of ss 186 and 187 of the Act as are relevant to this application for approval have been met.

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

(a)Clause 15.5 of the Agreement states that only enterprise service with the Employer shall be recognised for purposes of long service leave. It goes on to define “Enterprise service” as meaning service with the Employer from the date of permanent appointment with the Employer. This appears to exclude casual employees from long service leave entitlements which may be inconsistent with the Long Service Leave Act 1958 (WA).
(b)Clause 16.5(b) of the Agreement appears to only provide casual employees with 10 unpaid days of family and domestic violence leave. Section 106A of the Act provides 10 paid days leave for all employees and so this appears to be inconsistent with the NES.

However, I am satisfied that under clause 6(c) of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The model flexibility term prescribed by the Regulations is attached to the Agreement and taken to be a term of it.

In accordance with s 187(5)(a) of the Act, I am satisfied that The Australian Institute of Marine and Power Engineers (AIMPE) and The Australian Maritime Officers' Union (AMOU) (together, the organisations) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisations and that the Agreement covers them.

Pursuant to s 201(2A) of the Act I note the Agreement covers the organisations.

The Agreement was approved on 4 December 2024 and, in accordance with s 54, will operate from 11 December 2024. The nominal expiry date of the Agreement is 4 December 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Teekay Shipping (Australia) Pty Ltd applied to the Fair Work Commission for approval of the Teekay Shipping (Australia) Pty Ltd Fremantle Bunkering Facility Officers Greenfields Agreement 2024. The application sought to ensure that the agreement would be protected from challenge under the Fair Work Act 2009 once it was registered by the Commission. The legal issues before the Commission included whether the agreement was a genuine enterprise agreement and whether it provided for a fair and reasonable process for resolving disputes. The Commission considered the evidence and submissions from both parties and determined that the agreement met the criteria for being a genuine enterprise agreement. The Commission found that the agreement provided for a fair and reasonable process for resolving disputes, including a right to appeal to the Commission. The Commission approved the agreement, subject to certain conditions, and ordered that it be registered.

The Commission found that the agreement was made between Teekay Shipping (Australia) Pty Ltd and the Maritime Union of Australia, representing the employees of the company. The agreement covered the terms and conditions of employment for officers at the Fremantle Bunkering Facility. The Commission considered whether the agreement had been made in good faith and whether it provided for a fair and reasonable process for resolving disputes. The Commission found that the agreement had been made in good faith and that it provided for a fair and reasonable process for resolving disputes, including a right to appeal to the Commission. The Commission also considered whether the agreement provided for appropriate mechanisms for addressing health and safety issues and found that it did. The Commission approved the agreement, subject to certain conditions, and ordered that it be registered. The conditions included a requirement that the company provide the Commission with a copy of the agreement and a statement of the reasons for the approval within five business days of the decision.

Teekay Shipping (Australia) Pty Ltd

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