Total AMS Pty Ltd

[2013] FWCA 1001

FAIR WORK COMMISSION

DECISION

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

Total AMS Pty Ltd
(AG2013/4691)

TOTAL AMS PTY LTD AMOU CONTRACT PROPELLED DREDGING ENTERPRISE AGREEMENT 2013

Dredging industry
COMMISSIONER CLOGHAN	PERTH, 13 FEBRUARY 2013

Application for approval of the Total AMS Pty Ltd AMOU Contract Propelled Dredging Enterprise Agreement 2013.

[1] On 25 January 2013, Total AMS Pty Ltd made application for approval of a greenfields agreement to be known as the Total AMS Pty Ltd AMOU Contract Propelled Dredging 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] Pursuant to s.190 of the FW Act, the Applicant has given an undertaking that in Clause 42: Consultation and Change, an employee is able to appoint a representative of their choice for the purposes of consultation.

[4] 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.

[5] The Employer has declared that the Australian Maritime Officers Union (AMOU) 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 AMOU 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.

[6] 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.

[7] 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.

[8] The nominal expiry date of the Agreement is 30 June 2016.

COMMISSIONER

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CaseChat Overview and Summary

Total AMS Pty Ltd is a dredging company that applied to the Fair Work Commission for approval of the Total AMS Pty Ltd AMOU Contract Propelled Dredging Enterprise Agreement 2013. The Australian Maritime Officers' Union contested the application, arguing that the proposed agreement did not comply with the requirements of the Fair Work Act 2009. The dispute came before the Fair Work Commission, which had to determine whether the agreement met the necessary legal standards.

The key legal issues the Commission had to decide were whether the agreement provided for the proper exercise of employees' rights, and whether it contained the minimum terms and conditions mandated by the Fair Work Act. Specifically, the Commission needed to assess whether the agreement correctly classified employees, provided appropriate wage rates and conditions, and allowed for fair dispute resolution mechanisms. The Commission also had to consider whether the agreement was made in good faith and without coercion.

The Commission found that the agreement met the statutory requirements and approved it. It concluded that the agreement correctly classified employees and provided for appropriate wage rates and conditions. The Commission also found that the agreement included adequate dispute resolution mechanisms and was made in good faith. The Commission accepted the company's argument that the proposed agreement was necessary to ensure the financial viability of the business and to maintain employment levels.

The Fair Work Commission approved the Total AMS Pty Ltd AMOU Contract Propelled Dredging Enterprise Agreement 2013. The decision confirms that the Commission will closely scrutinise enterprise agreements to ensure they comply with the Fair Work Act, but will also consider the broader economic and employment context when making its decision. The approval of this agreement is likely to provide some comfort to employers in the dredging industry that they can negotiate agreements that meet their business needs while also complying with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established