[1] SeaLink Northern Territory Pty Ltd ("the Employer") has applied for approval of an enterprise agreement known as the SeaLink NT Enterprise Agreement 2025-2029 ("the Agreement"). The Application was made under section 185 of the Fair Work Act 2009 ("the Fair Work Act"). The Agreement is a single enterprise agreement.

[2] The application was required to be filed within 14 days after the Agreement was made. Subsection 182(1) of the Fair Work Act provides that an agreement is made "when a majority of those employees who cast a valid vote approve the agreement." In this case voting opened on Monday 1st September, 2025 at 6:00am ACST, and closed on Wednesday 3rd September, 2025 at 11:59pm ACST. However, the ballot was not declared until after midnight. The employer contends that the Agreement was made on the date the declaration of results was received. They did not draw my attention to any authorities to support their preferred construction. They filed their application within fourteen days after the date on which they received the declaration, but not within fourteen days after the date the ballot closed. In the alternative, the Employer asked that time be extended.

[3] What is the proper construction of subsection 182(1) in that regard? Taken too literally subsection 182(1) could refer to the point in time during the ballot when the majority is attained. In a multi-day secret ballot this construction would give rise to uncertainty. I consider the better view to be that the point at which the majority who cast a valid vote approve the agreement is at the conclusion of the ballot period. This appears to have been assumed by, at least, Greenwood J in ANMF v Kaizen Hospitals (Essendon) Pty Ltd,[1] as well as by the Commission at first instance in various matters.[2]

[4] On that basis, the Agreement was due to be filed on or before 17 September 2025 in accordance with subsection 185(3) of the Fair Work Act. As it was not filed until 18 September 2025, it was filed one day after the expiry of the statutory timeframe. Pursuant to subsection 185(3)(b), and in all the circumstances, I consider it fair to extend the time for making the application to 18 September 2025.

[5] Noting clause 11 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards ("NES") in the Fair Work Act will prevail where there is an inconsistency between the Agreement and the NES.

[6] I sought submissions as to the BOOT, in relation to maximum daily hours, shift penalties, weekend penalties, and overtime. I received responses from both the Employer and an employee bargaining representative, Ryan Kennedy. I have considered those responses.

[7] The Employer has given written undertakings in accordance with section 190 of the Fair Work Act. The undertakings are attached as Annexure A to this decision. I am satisfied that each undertaking is not likely to cause financial detriment to any employee covered by the Agreement and does not result in substantial changes to the Agreement. Each undertaking is taken to be a term of the Agreement.

[8] With the undertakings now given, and after having regard to the Statement of Principles on Genuine Agreement as well as the application and declarations filed in this matter, I am satisfied that each of the requirements of sections 186, 187, 188 and 190 of the Fair Work Act, as are relevant to this application for approval, have been met.

[9] The Australian Institute of Marine and Power Engineers (AIMPE) lodged a declaration in the prescribed form[3] giving notice under s.183 of the Fair Work Act that it wants the Agreement to cover it. In accordance with subsection 201(2) of the Fair Work Act, I note the Agreement covers AIMPE.

[10] The Agreement is approved and will operate in accordance with section 54 of the Fair Work Act. The nominal expiry date of the Agreement is 27 November 2029.

[1] [2015] FCAFC 23, [34] (Greenwood J).

[2] See for example The Baptist Union of Queensland - Carinity T/A Carinity [2019] FWCA 4313.

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