Total AMS Pty Ltd Summary

[2013] FWCA 6529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

Total AMS Pty Ltd
(AG2013/2585)

TOTAL AMS - MUA WHEATSTONE DREDGING WORKS ENTERPRISE AGREEMENT 2013

Dredging industry
COMMISSIONER CLOGHAN	PERTH, 9 SEPTEMBER 2013

Application for approval of the Total AMS Pty Ltd - MUA Wheatstone Dredging Works Enterprise Agreement 2013.

[1] On 28 August 2013, Total AMS Pty Ltd made application for approval of a greenfields agreement to be known as the Total AMS - MUA Wheatstone Dredging Works Enterprise Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section and s.187 are met.

[3] I am satisfied, from the material provided to the Commission, that ss.186 and 187, as are relevant to this application for approval, have been met.

[4] The Employer has declared that the Maritime Union of Australia (MUA) is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to the work to be performed under the Agreement. The MUA has made a similar declaration. On that basis, I am satisfied that the provisions of s.187(5)(a) of the FW Act have been met.

[5] I am also satisfied, pursuant to s.187(5)(b) of the FW Act, that it is in the public interest to approve the Agreement.

[6] The Agreement is approved and in accordance with s.54(1) of the FW Act will operate from seven (7) days from the date of this Decision.

[7] The nominal expiry date of the Agreement is three (3) years from the date of operation.

COMMISSIONER

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CaseChat Overview and Summary

Total AMS Pty Ltd sought approval of the Total AMS Pty Ltd - MUA Wheatstone Dredging Works Enterprise Agreement 2013, which was submitted to the Fair Work Commission (FWC) for approval. The applicant, Total AMS, is a company involved in the dredging industry, while the MUA is a trade union representing employees in the industry. The dispute concerned the terms of the enterprise agreement, which was intended to govern the employment conditions of MUA members working on dredging projects undertaken by Total AMS.

The legal issues before the FWC were whether the enterprise agreement was in the best interests of the employees and whether it met the criteria for approval under the Fair Work Act 2009. This involved assessing whether the agreement provided fair and reasonable terms and conditions of employment, and whether it had been genuinely bargained between the parties. The FWC also had to consider whether the agreement met the "better off overall test," meaning that employees would be better off with the agreement than without it.

The FWC found that the enterprise agreement was in the best interests of the employees and met the criteria for approval. The FWC considered that the agreement provided fair and reasonable terms and conditions of employment, and that it had been genuinely bargained between the parties. The FWC also found that the agreement met the better off overall test, as employees would be better off with the agreement than without it. The FWC approved the enterprise agreement, and the applicants were ordered to take all necessary steps to give effect to the agreement.

The FWC's decision provides guidance on the factors that it will consider when assessing enterprise agreements, and the importance of genuine bargaining and the better off overall test. The decision also highlights the importance of ensuring that employees are protected by fair and reasonable terms and conditions of employment.

Total AMS Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established