ENTERPRISE AGREEMENTS – better off overall test – ss.185, 193, 604 Fair Work Act 2009: reg 2.06 Fair Work Regulations 2009 – appeal – Full Bench – appeal related to decision with respect to application by Sea Swift for approval of the Sea Swift P/L Employee Enterprise Agreement (Agreement) – MUA, AMOUT and AIMPE appealed against two aspects of Commissioner’s decision – firstly, finding that the relevant modern award for purposes of the Better Off Overall Test (BOOT) was the Ports, Harbours and Enclosed Water Vessels Award 2010 (Ports Award), not the Seagoing Industry Award 2010 (Seagoing Award) – secondly, finding that employees genuinely agreed to Agreement in circumstances where senior management appointed as bargaining representative – Full Bench granted permission to appeal with respect to both grounds – BOOT grounds raised contentious issue of fundamental importance to proper application of the statutory test – grounds relating to bargaining representatives somewhat novel and circumstances unusual – clarification on provisional operation desirable – Full Bench noted determination of relevant award for BOOT purposes requires consideration of coverage clauses of respective instruments applied to relevant evidence – crucial evidence that of employer’s operations as industry awards – principles for interpreting award provisions laid out in Kucks v CSR Limited (Madgwick J) – Full Bench considered Sea Swift’s operations within substantive provision of Seagoing Award as operated vessels trading as cargo vessels which in the course of operation proceed to sea on voyages outside the limits of bays, harbours or rivers – found once vessels leave the coastline and travel up the coast, essentially at sea – presence of reefs, islands or Australian territorial waters beyond the routes takes around the coastline irrelevant – held substantive definition of industry covered by the Ports Award did not apply – once vessel leaves the coast it is by definition no longer in a port, harbour or body of water within the Australian coastline – held Seagoing Award the relevant award for application of BOOT and approval process – appeal allowed and decision with respect to the aspect quashed – in relation to genuine agreement ground, Full Bench held Commissioner’s decision discretionary – no appealable error established – appeal on this ground dismissed – matter remitted to Commissioner to finalise approval process. Appeal by Maritime Union of Australia, The and Ors Against decision of Simpson C of 30 October 2015 [[2015] FWC 6644] Re: Sea Swift P/L t/a Sea Swift and Ors
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