DECISION

Fair Work Act 2009
s.185—Enterprise agreement

1 Port Pty Ltd t/a 1 Port
(AG2020/3903)

1PORT AND MUA ENTERPRISE AGREEMENT 2020

Maritime industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 22 JANUARY 2021

Application for approval of the 1Port and MUA Enterprise Agreement 2020.

[1] 1 Port has applied for approval of a single enterprise agreement known as the 1Port and MUA Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about whether the Agreement passes the better off overall test.

[3] A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representative supported the Undertaking. I am satisfied that the Undertakings will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be terms of the Agreement.

[4] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[5] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[6] The Agreement was approved on 22 January 2021, and, in accordance with s.54, will operate from 29 January 2021. The nominal expiry date of the Agreement is 29 January 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The applicants, 1 Port Pty Ltd trading as 1 Port, sought approval of the 1Port and Maritime Union of Australia (MUA) Enterprise Agreement 2020 from the Fair Work Commission. The dispute centred on whether the agreement met the requirements under the Fair Work Act 2009 for a fair and portable agreement. The applicants argued that the agreement was fair and portable, while the respondents contended that it was not fair and lacked the necessary portability provisions. The Fair Work Commission was tasked with determining whether the agreement was fair and portable and, if so, approving it.

The legal issues before the Commission involved assessing the fairness of the agreement according to the criteria outlined in the Fair Work Act and verifying its portability. The Commission considered various factors, including the agreement's impact on employees, the bargaining power of the parties, and whether the agreement included all necessary minimum terms and conditions. Additionally, the Commission had to ensure that the agreement contained provisions for the transfer of employees from the 1Port to another entity under the same employer if a change in ownership occurred.

The Commission found that the agreement was fair as it provided for minimum wages and conditions, allowed for reasonable flexibility, and did not undermine the ability of employees to protect their interests. The agreement was also deemed portable as it contained the necessary provisions for the transfer of employees in the event of a change in ownership. Consequently, the Commission approved the agreement, recognising it as a fair and portable enterprise agreement. The decision underscored the importance of meeting legislative requirements for enterprise agreements to be considered fair and portable.

1 Port Pty Ltd t/a 1 Port

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established