ACFS Port Logistics Pty Limited

[2024] FWCA 497

[2024] FWCA 497

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

ACFS Port Logistics Pty Limited

(AG2024/129)

MUA - ACFS PORT LOGISTICS PTY LIMITED FAIR WORK AGREEMENT 2023 TO 2026

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 9 FEBRUARY 2024

Application for approval of the MUA - ACFS Port Logistics Pty Ltd Fair Work Agreement 2023 to 2026

1. An application has been made for approval of an enterprise agreement known as the MUA - ACFS Port Logistics Pty Limited Fair Work Agreement 2023 to 2026 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by ACFS Port Logistics Pty Limited (Employer). The Agreement is a single enterprise agreement.

1. The notification time for the Agreement and the date that the Agreement was made post-date 6 June 2023. Accordingly, the legislative changes to the Act in relation to the genuine agreement provisions and the better off overall test requirements apply to this approval application.[1]

1. The Notice of Employee Representational Rights (NERR) issued by the Employer referred to the name of the predecessor enterprise agreement and was prepared using a version of the NERR that applied prior to the 6 June 2023 legislative reforms. This may mean that the NERR was not in its prescribed form as required by s 174(1A) of the Act. Having regard to the Employer’s submissions, I am satisfied that this constitutes a minor procedural or technical error and employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I consider that the Agreement has been genuinely agreed to within the meaning of s 188(5)(a) of the Act.

1. The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

1. Noting undertaking provided at paragraph [4], I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES and will address the following issues:

·   Casual conversion: Clause 16.1.3 of the Agreement provides that the Employer may, at its discretion, require a casual to convert to a permanent employee after 5 months regular and systematic employment with it. If the casual employee refuses to become a permanent employee the Employer will be under no obligation to offer further employment. This is inconsistent with s 66B(1)(b) of the Act, which provides that an employer must offer conversion after 12 months, if during at least 6 months the employee has worked a regular pattern of hours on an ongoing basis which they could continue to work as a full or part time employee.

·   Redundancy: Clause 1b in Schedule 3 of the Agreement provides that former employees are entitled to 3 weeks of redundancy pay for up to 12 months of service. This appears to be inconsistent with s 119 of the Act which provides for redundancy pay of 4 weeks for employees who have completed at least 1 year but less than 2 years of service. In addition, clause 18.4.2 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment, however, the clause is not subject to an application to the Commission under s 120 of the Act.

·   Personal Leave: Clause 25.4 requires that an employee must provide 24 hours notification prior to the absence where possible. In any event the employee must notify their supervisor or manager one hour prior to the commencement of the absence where practicable and indicate the expected duration of the absence. This appears to be inconsistent with s 107(2) of the Act which states notice must be given to the employer as soon as practicable (which may be a time after the leave has started).

·   Compassionate leave: Clause 25.5 provides for compassionate leave, however it is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

·   Community service leave: Clause 29.2 of the Agreement provides that an employee is required to give at least 5 days’ notice of the date upon which the employee is required to attend for jury service. This appears to be more restrictive than s 110 of the Act which states that notice must be given as soon as practicable which may be a time after the leave has started.

·   Family and Domestic Violence Leave: Clause 31.8 of the Agreement provides for 5 days of paid family and domestic violence leave. This is inconsistent with s 106A of the Act which provides 10 days paid domestic violence leave each 12 month period to all employees (i.e., full-time, part-time and casuals).

1. The Agreement does not contain a model flexibility term compliant with the Act. Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. The Construction, Forestry and Maritime Employees Union (CFMEU) being a bargaining representative for the Agreement has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s 54 of the Act will operate from 16 February 2024. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) broadly commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. The transitional arrangements under the Amending Act are not applicable to the present application.

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