Application by Sea Swift Pty Ltd [2016] FWC 1882 (24 March 2016) [2016] FWC 1882 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.185 —Enterprise agreement Sea Swift Pty Ltd T/A Sea Swift v The Maritime Union of Australia and others (AG2015/2789) COMMISSIONER SIMPSON BRISBANE, 24 MARCH 2016 [1] An application for approval of the Sea Swift Pty Ltd Enterprise Agreement was listed for directions at 11am today. An application was made by Sea Swift Pty Ltd in the course of the directions hearing that the application for approval of the agreement be stood over pending the determination of the Full Bench in AM2016/5, a matter falling within the 4 yearly review of modern awards dealing with the Ports, Harbours and Enclosed Water Vessels Award 2010 and the Seagoing Award 2010. [2] This Agreement application has a lengthy history which I will set out very briefly to explain the context of the application that the matter is stood over. [3] The application was filed on 22 May 2015. On 30 October 2015 I issued a decision that dealt with a range of objections to the approval of the agreement made by the MUA, AIMPE, AMOU and TWU. That decision was the subject of appeals to the Full Bench. One ground of appeal, ultimately upheld, related to a conclusion drawn in the matter at first instance that the relevant modern award for the marine operations at Sea Swift was the Ports, Harbours and Enclosed Water Vessels Award 2010 , rather than the Seagoing Industry Award 2010. [4] The Full Bench concluded at paragraph [35] of their decision as follows: “It follows from our conclusions on the third and fourth questions that the exclusion in the Seagoing Award does not apply. Putting these conclusions together, we find that the Seagoing Award is the relevant award for the application of the BOOT and the approval process of the Agreement.” [5] The matter was remitted back to me to finalise the approval process on the basis of the decision in the appeal. The submission raised before me by Sea Swift today is that the Full Bench decision focussed entirely on its line haul vessels and fishing operations. Sea Swift maintain that paragraph 35 of the Full Bench decision should not be interpreted to mean the Seagoing Industry Award 2010 is the only award relevant to its marine operations, and that up to three maritime awards, including for example the Marine Towage Award 2010 apply to its vessels, and not just the Seagoing Industry Award 2010. [6] Sea Swift submitted that as the interpretation of the Full Bench decision is relevant to the application of the BOOT in the agreement approval application it is relevant to the submissions it needs to make in order to seek to have the agreement approved. [7] Sea Swift also submitted that matters concerning the unique nature of Sea Swifts operations were not brought to the attention of the Award Modernisation Full Bench at the time the maritime awards were being made and that given that a Full Bench of the Fair Work Commission has now been constituted in AM2016/5 that will deal with uncertainties in this area, the agreement application should be stood over pending the outcome of the Full Bench determination in the Award Review. [8] Sea Swift pressed that standing the matter over pending the Full Bench determinations in AM2016/5 was preferable to the likely appeal that would follow from an interpretation of paragraph 35 of the Full Bench decision that I may make. [9] All of the Unions opposed the application that the matter is stood over. The MUA and AMOU submitted that Sea Swift has not sought judicial review of the Full Bench decision, and that paragraph 35 of that decision is clear and unequivocal that the relevant award is the Seagoing Industry Award 2010. [10] AIMPE adopted the submissions of the MUA and AMOU and directed me to paragraph 28 of the Full Bench decision that incorporates paragraphs 16 to 25 of the decision at first instance that summarises the evidence concerning Sea Swifts marine operations. AIMPE submitted that summary incorporated into the Full Bench decision includes a description of all of Sea Swifts fleet of vessels, and specifically referred to paragraph 18 in that summary. It seems clear from reading the Full Bench decision in its totality that the Full Bench had regard to all of the various vessels operated by Sea Swift. I cannot discern any restrictions or conditions to be read into the finding in paragraph 35. [11] I am content that the words in paragraph 35 of the Full Bench decision are clear and unambiguous and that the Full Bench found that the Seagoing Industry Award 2010 is the relevant award for the application of the BOOT to Sea Swifts maritime operations. The Full Bench remitted the matter to me to finalise the approval process in accordance with its decision. I am bound to follow that decision. If Sea Swift disagrees with the Full Bench it could have challenged that finding. It has not. [12] The Unions also submitted that given that section 193(6) of the Fair Work Act 2009 provides that the test time is the time the application for approval of the agreement is made, any outcome from a Full Bench decision in the 4 yearly reviews of modern awards could not have an impact on this application. That submission is correct and I agree that any changes that may be made by the Full Bench in AM2016/5 at some point in the future cannot be relevant to the application of the BOOT in this matter. [13] For the reasons above I do not intend to stand the matter over as proposed by Sea Swift. Sea Swift was advised by me on 7 March 2016 of a number of concerns I have about whether the agreement satisfies the approval requirements of ss.186 and 187 . I emphasised that these concerns were in addition to the concerns I identified at paragraph 161 of my decision of 30 October 2015. [14] Sea Swift has also been advised of further issues raised by AIMPE in email correspondence of 16 March 2016 and the MUA on 21 March 2016. The TWU submits that it continues to have concerns in relation to the matter of the payment of overtime and referred to its earlier submissions filed on 12 November 2015. [15] I am satisfied that each of the matters identified by the unions raise further concerns that the agreement may not satisfy the approval requirements of ss.186 and 187 , and that it is appropriate that Sea Swift also respond to each of those matters in addition to the matters raised by me. [16] I have decided to list the matter for 10am on Thursday 14 April 2016 in order for Sea Swift to make any further submissions it wishes to make in support of the approval of the agreement, and also to proffer any undertakings to address the concerns raised. The unions will also be given an opportunity to make any further submissions on that date. [17] I draw attention to Section 190(4) of the Act that sets out a requirement that the FWC must not accept an undertaking under subsection (3) unless the FWC has sought the views of each person who the FWC knows is a bargaining representative for the agreement. Given there were a large number of employee bargaining representatives involved in the agreement making process, it is requested that in the event that Sea Swift intends to proffer undertakings, that Sea Swift also propose a means by which the FWC can seek the views of each employee bargaining representative regarding the proposed undertakings. COMMISSIONER Appearances : Mr A Herbert Counsel for the Applicant instructed by Livingstones Australia; Mr N Keats W G McNally Jones Staff for AIMPE; Mr D Quinn CRH Law for MUA and AMOU; Ms M Cerrato for TWU. Hearing details: 2016 Brisbane: 24 March Printed by authority of the Commonwealth Government Printer <Price code {A}, PR578362>