Van Oord Australia Pty Ltd Summary

[2013] FWCA 8181

FAIR WORK COMMISSION

DECISION

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

Van Oord Australia Pty Ltd
(AG2013/2975)

VAN OORD AUSTRALIA CONTRACT DREDGING (NON-PROPELLED DREDGES AIMPE ENTERPRISE AGREEMENT 2011

Dredging industry
COMMISSIONER CAMBRIDGE	SYDNEY, 18 OCTOBER 2013

Application for approval of the Van Oord Australia Contract Dredging (Non-Propelled Dredges AIMPE Enterprise Agreement 2011.

[1] An application has been made for approval of an enterprise agreement known as the Van Oord Australia Contract Dredging (Non-Propelled Dredges AIMPE Enterprise Agreement 2011 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Van Oord Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 20 September 2013. The application included a Statutory Declaration of Richard Kemps dated 20 September 2013 and made on behalf of the Employer (the Declaration). The Declaration stated that the Agreement was made on 9 September 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] As a result of concerns that were raised about a particular terms of the Agreement further information has been provided by the Employer which included Undertakings dated 15 October 2013, made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings). Consequently I have further considered the application for approval having regard for the further information provided by the Employer and the Undertakings.

[5] The application for approval was listed for Hearing in Chambers before the Commission on 18 October 2013. I note that the file has included a Statutory Declaration of Martin Byrne made on behalf of the Australian Institute of Marine and Power Engineers, (AIMPE), as an employee organisation in relation to the application.

[6] I note that the Agreement contains a flexibility term at clause 37 and a consultation term at clause 38.

[7] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[8] The AIMPE, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMPIE.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act it will operate from 25 October 2013. The nominal expiry date of the Agreement as specified in clause 6.1 of the Agreement, is 1 October 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Van Oord Australia Pty Ltd applied to the Fair Work Commission for approval of a new enterprise agreement, the Van Oord Australia Contract Dredging (Non-Propelled Dredges) AIMPE Enterprise Agreement 2011. The agreement, which was to be registered under the Fair Work Act 2009, was proposed to cover employees of Van Oord Australia, who are engaged in contract dredging operations using non-propelled dredges, and are members of the Australian Institute of Marine and Power Engineers (AIMPE). The Fair Work Commission was tasked with determining whether the agreement met the criteria for registration under the Act, including whether it was fairly and properly negotiated, and whether it contained all the mandatory terms and conditions required by law.

The primary legal issues before the Fair Work Commission were whether the proposed enterprise agreement had been fairly and properly negotiated, and whether it complied with the mandatory terms and conditions prescribed by the Fair Work Act 2009. The Commission considered the evidence provided by both parties, including the negotiation process and the content of the agreement, to determine if it met the statutory requirements. The Commission also examined whether the agreement was in the best interests of the employees and whether it provided for the fair and reasonable treatment of all parties involved.

In its decision, the Fair Work Commission found that the negotiation process for the enterprise agreement was fair and proper. The Commission noted that the agreement contained all the mandatory terms and conditions required by law, including those relating to minimum wages, penalties, leave entitlements, and dispute resolution mechanisms. The Commission was satisfied that the agreement was in the best interests of the employees and provided for their fair and reasonable treatment. As a result, the Commission approved the Van Oord Australia Contract Dredging (Non-Propelled Dredges) AIMPE Enterprise Agreement 2011, and it was registered under the Fair Work Act 2009. The decision underscores the importance of ensuring that enterprise agreements are negotiated fairly and contain all the necessary statutory terms and conditions to be valid and enforceable.

Van Oord Australia Pty Ltd

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Background to the litigation

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Legal Principle Established