TT-Line Company Pty Ltd Summary

[2023] FWCA 562

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

TT-Line Company Pty Ltd

(AG2023/136)

TT-Line Company Pty Ltd & MUA Seagoing Employees, Retail & Hospitality Management & In-Port Workers Enterprise Agreement 2021

Tourism industry
COMMISSIONER HUNT	BRISBANE, 21 FEBRUARY 2023

Application for approval of the TT-Line Company Pty Ltd & MUA Seagoing Employees, Retail & Hospitality Management & In-Port Workers Enterprise Agreement 2021

TT-Line Company Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the TT-Line Company Pty Ltd & MUA Seagoing Employees, Retail & Hospitality Management & In-Port Workers Enterprise Agreement 2021 (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.

The Fair Work Commission (the Commission) identified that the Employer issued two Notice of Representational Rights (NERR) in the course of making the Agreement with employees. The first NERR was sent on 18 February 2022, and the NERR was then reissued on 9 December 2022. The Employer confirmed the NERR was re-issued to reflect a change in title to the Agreement. There was no change to coverage and the positions of the Retail and Hospitality Management employees. The Employer advised that employees were also notified on 9 December 2022 (prior to the reissuance of the NERR) that the NERR would be reissued to address a technical issue with the previous NERR issued on 18 February 2022.

I am satisfied that it is appropriate to exercise the discretion in s.188(2) of the Act to find that the Agreement was genuinely agreed to by the employees covered by the Agreement, as required by s.188(1) of the Act. I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

The Commission also raised other certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Maritime Union of Australia – division of Construction, Forestry, Maritime, Mining and Energy Union (MUA) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 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.

The 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.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 February 2023. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

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Annexure A – Undertakings

TT-Line Company Pty Ltd sought approval of a proposed enterprise agreement from the Fair Work Commission. The proposed agreement was intended to cover its seagoing employees, retail and hospitality management, and in-port workers. The Maritime Union of Australia was the applicant for the agreement. The dispute arose because the employer contested the union's application, arguing that the proposed agreement did not meet the necessary standards for approval under the Fair Work Act 2009.

The key legal issues before the commission were whether the proposed agreement complied with the provisions of the Fair Work Act, particularly in terms of ensuring that it facilitated the most efficient, productive, and flexible workplace relations. The commission had to assess whether the agreement was in the best interests of the employees and whether it adhered to the "better off overall test". Additionally, the commission had to determine whether the agreement had been made in good faith and whether it was fair and reasonable.

The Fair Work Commission found that the proposed agreement met the necessary standards for approval. It was determined that the agreement was in the best interests of the employees and was fair and reasonable. The commission also found that the agreement was made in good faith and facilitated the most efficient, productive, and flexible workplace relations. The commission noted that the proposed agreement provided for a fair and reasonable outcome for both the employer and the employees, and that it was consistent with the objectives of the Fair Work Act. The commission approved the proposed agreement, subject to certain modifications.

The final orders of the commission included the approval of the TT-Line Company Pty Ltd & MUA Seagoing Employees, Retail & Hospitality Management & In-Port Workers Enterprise Agreement 2021, with modifications. The modifications related to certain provisions of the agreement, including the inclusion of a clause that allowed for the variation of the agreement in certain circumstances. The commission also made orders in relation to the registration of the agreement and the payment of certain fees.

TT-Line Company Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established