Details 

Created: 22 November 2019

The Commission has dismissed an application made by a seafarer who alleged that he had been denied a contractual benefit when his employer did not approve his request to study and sit for an AMSA Chief Mate Certificate of Competency. The applicant alleged that his entitlement to this request was contained in clause 13.9 of the Svitzer Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (the Agreement) which was referred to in his contract of employment with the respondent. The Commission considered whether cl 13.9 was a contractual entitlement and, if so, was it breached.

Commissioner Matthews determined that cl 13.9 conferred a contractual entitlement on the applicant because the parties' contract of employment included language of contractual incorporation and it was reasonable to consider that the Agreement was incorporated into the contract.

Matthews C observed that cl 13.9 included a qualification, that the entitlement must not be unreasonably withheld by the employer. The respondent's financial situation and the fact that there was no pressing need for the applicant to become a chief mate was considered by Matthews C who concluded that the applicant had not established that the respondent had withheld their consent unreasonably.

The applicant claimed that a deal had been made in 2016 that if he did certain things the employer would fund his chief mate certificate. Matthews C determined that this claim did not need to be determined because the applicant had not raised this deal in his cl 13.9 application to the respondent.

The Commission dismissed the application.

The decision can be read here.