FWC full bench accepts appeal against Sea Swift
The unions' appeal regarding identification of the relevant modern award for BOOT to be reviewed
The Fair Work Commission (FWC) has ruled in favour of an appeal submitted by the Maritime Union of Australia (MUA), the Australian Maritime Officers’ Union (AMOU), and the Australian Institute of Maritime and Power Engineers (AIMPE) against an earlier ruling by the FWC in the matter of enterprise agreement dispute with marine transporter Sea Swift.
A full bench quashed a decision by FWC commissioner Simpson dated October 30, 2015 regarding identification of the relevant modern award for the purposes of the Better Off Overall Test (BOOT), while rejecting the challenge against genuineness of the enterprise agreement.
The FWC accepted the unions’ appeal against a former ruling in favour of Sea Swift’s nomination of the Ports and Harbours Award as the more appropriate award for the BOOT.
The unions contend that the Seagoing Award is a better comparator for the purposes of the BOOT.
The unions had also challenged FWC’s earlier ruling that the employees genuinely agreed to the enterprise agreement, claiming the Sea Swift senior managers, who acted as bargaining representatives, could not be free from control and were under "improper influence" of the company – an appeal rejected by the full bench.
On May 22 last year, Sea Swift made an application to the FWC for the approval of the enterprise agreement, followed by notices from five unions demanding to be covered by the agreement.
While the AWU filed a statutory declaration in support of the approval of the agreement, the MUA, the AMOU and the TWU all opposed the approval.
The AIMPE filed a statutory declaration indicating support for the approval while also flagging "significant concerns" in relation to it.