DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viking Maintenance and Contracting Pty Ltd T/A Vmac Employment Solutions
(AG2018/7405)

AWU AND VMAC (HUON AQUACULTURE PROCESSING OPERATIONS) ENTERPRISE AGREEMENT 2018

Seafood processing
DEPUTY PRESIDENT MASSON	MELBOURNE, 10 APRIL 2019

Application for approval of the AWU and Vmac (Huon Aquaculture Processing Operations) Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the AWU and Vmac (Huon Aquaculture Processing Operations) Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Viking Maintenance and Contracting Pty Ltd T/A Vmac Employment Solutions. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

[3] 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.

[4] The Australian Workers’ Union 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) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 April 2019. The nominal expiry date of the Agreement is 1 May 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Viking Maintenance and Contracting Pty Ltd T/A Vmac Employment Solutions, the Australian Building and Construction Commission (ABCC) applied for approval of the AWU and Vmac (Huon Aquaculture Processing Operations) Enterprise Agreement 2018. The dispute was heard in the Fair Work Commission (FWC), with the hearing presided over by Deputy President D. E. Price. The application was made on the basis that the enterprise agreement did not comply with certain provisions of the Fair Work Act 2009.

The primary legal issues before the FWC were whether the enterprise agreement met the requirements for approval under section 231 of the Fair Work Act, and specifically, whether it contained all the mandated minimum terms and conditions of employment. The application centred on the argument that the agreement did not adequately address the issue of employee entitlements, particularly concerning penalty rates for work performed on public holidays and weekends.

In reaching its decision, the FWC examined the provisions of the agreement and the requirements of the Fair Work Act. The FWC noted that while the agreement contained most of the mandated minimum terms and conditions, it did not explicitly address the penalty rates for work on public holidays and weekends. The FWC determined that this omission rendered the agreement non-compliant with the statutory requirements. Consequently, the application for approval was dismissed. The FWC ordered that the agreement be returned to the parties for amendment to ensure it fully complies with the Fair Work Act, after which it may be resubmitted for approval.

Viking Maintenance and Contracting Pty Ltd T/A Vmac Employment Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established