Total AMS Pty Ltd T/A TAMS Group

[2023] FWCA 1520

[2023] FWCA 1520

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Total AMS Pty Ltd T/A TAMS Group

(AG2023/1150)

TOTAL AMS PTY LTD WA INSHORE DIVING ENTERPRISE AGREEMENT 2023

Diving services
COMMISSIONER HUNT	BRISBANE, 26 MAY 2023

Application for approval of the Total AMS Pty Ltd WA Inshore Diving Enterprise Agreement 2023

1. Total AMS Pty Ltd T/A TAMS Group (the Employer) as applied for approval of an enterprise agreement known as the Total AMS Pty Ltd WA Inshore Diving Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

1. The Fair Work Commission (the Commission) raised a concern regarding the Agreement with the Employer in relation to the number of employees said by the Employer to be proposed to be covered by the Agreement and the number of employees employed during the access period.

1. The Employer invited ten employees to vote on the Agreement. Following inquiries from the Commission, the Employer provided information that thirteen employees were employed at the commencement of the access period and ten employees employed at the end of the access period. On this basis, the Employer considered that there were ten employees covered by the Agreement.

1. I consider that there was an irregularity in the voting period, as in my view, thirteen employees were eligible to vote whether to approve the Agreement or not. I therefore consider that s.180(3) of the Act has not been satisfied.

1. I have had regard to the fact that there are thirteen employees to be covered by the Agreement, with ten voting and all ten voting yes to make the Agreement. I consider it appropriate to exercise the discretion available in s.188(2) of the Act to find that the failure to meet the requirements at s.180(3) of the Act is a minor procedure or technical error. I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural or technical error and the employees were not likely to have been disadvantaged by the error.

1. I have taken into consideration the material filed in the Commission. Having regard to the decision made by me in [5], I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Maritime Union of Australia (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) of the Act I note that the Agreement covers the MUA.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 June 2023. The nominal expiry date of the Agreement is 26 May 2027.

COMMISSIONER

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