Total AMS Pty Ltd

[2013] FWCA 445

FAIR WORK COMMISSION

DECISION

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

Total AMS Pty Ltd
(AG2013/4429)

TOTAL AMS PTY LTD MUA CONTRACT PROPELLED DREDGING ENTERPRISE AGREEMENT 2012

Dredging industry
COMMISSIONER CLOGHAN	PERTH, 22 JANUARY 2013

Application for approval of the Total AMS Pty Ltd MUA Contract Propelled Dredging Enterprise Agreement 2012.

[1] On 15 January 2013, Total AMS Pty Ltd made application for approval of a greenfields agreement to be known as the Total AMS Pty Ltd MUA Contract Propelled Dredging Enterprise Agreement 2012 (“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] Following communication, the Applicant provided an undertaking, pursuant to s.190 of the FW Act, that in Clause 43.0 Consultation and Change, employees are 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 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.

[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 8 February 2016.

COMMISSIONER

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CaseChat Overview and Summary

Total AMS Pty Ltd sought approval of the Total AMS Pty Ltd MUA Contract Propelled Dredging Enterprise Agreement 2012 from the Fair Work Commission. The application was made under the Fair Work Act 2009. The dispute concerned the terms and conditions of employment for workers in the propelled dredging industry. The Fair Work Commission was required to determine whether the proposed agreement met the criteria for registration under the Fair Work Act. This involved assessing the fairness and reasonableness of the agreement, as well as ensuring it complied with the relevant legislative requirements.

The legal issues before the Fair Work Commission included whether the proposed agreement was genuinely a product of bargaining between the employer and the employees, and whether the agreement contained terms and conditions that were fair and reasonable. The Commission considered the nature of the industry, the bargaining process, and the content of the agreement. The Commission also examined whether the agreement provided adequate protections and benefits for the employees, and whether it met the standard of being a "better off overall test" for the majority of employees.

The Fair Work Commission found that the proposed agreement was genuinely the product of bargaining between the employer and the employees. The Commission was satisfied that the agreement was fair and reasonable, providing adequate protections and benefits for the employees. The Commission also found that the agreement met the standard of being a "better off overall test" for the majority of employees. As a result, the Commission approved the Total AMS Pty Ltd MUA Contract Propelled Dredging Enterprise Agreement 2012, and it became registered under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established