Application by Fremantle Ports

[2017] FWCA 2073

[2017] FWCA 2073

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Application by Fremantle Ports
(AG2017/1153)

FREMANTLE PORTS BULK & GENERAL STEVEDORING ENTERPRISE AGREEMENT 2017

Port Authorities
DEPUTY PRESIDENT BULL	PERTH, 12 APRIL 2017

Application for approval of the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2017 - Agreement negotiated under the Commission’s New Approaches framework.

[1] An application has been made by Fremantle Ports (the applicant/Fremantle Ports) for the approval of an enterprise agreement known as the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Agreement covers the applicant and its employees employed in stevedoring positions and performing the work described in this Agreement.

[3] The Agreement will replace the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2012 and all other awards and agreements and regulate the conditions of employment relevant to the Fremantle Ports’ employees in the performance of all stevedoring functions in the Agreement at the Outer Harbour in Kwinana except for employees covered by the Fremantle Ports Administration and Management Enterprise Agreement 2014. At the time of voting for the Agreement there were 12 employees covered by the Agreement.

[4] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement were fairly chosen.

[5] The Maritime Union of Australia (MUA) was an employee organisation involved in the agreement making process as a bargaining representative. The MUA has filed a statutory declaration (F18) stating that it supports the approval of the Agreement.

[6] The Port Authorities Award 2010 (the Award) is the relevant reference instrument for the purposes of the better off overall test (BOOT) as required under s.186 of the Act.

Interest Based Bargaining

[7] The negotiations for the Agreement were conducted under the umbrella of the Commission’s New Approaches Program which provides assistance to parties to work together to develop new ways of resolving conflict at the workplace using interest-based problem solving. The New Approaches Program was developed following a 2013, amendment to the Act which provided the Commission with a new function ‘Promoting cooperative and productive workplace relations and preventing disputes’. 1

[8] Interest based bargaining is a voluntary exercise that both the Fremantle Ports and the MUA committed themselves to, having jointly participated in a training and education program run by the Commission. Running in parallel with the Stevedoring negotiations were negotiations to replace the Fremantle Ports Operations and Services Agreement 2012.

[9] At the commencement of the negotiations, Fremantle Ports identified their bargaining interests in negotiating agreements to cover its Operations and Services and Stevedoring which included negotiating agreements that:

• produce tangible productivity and efficiency improvements;



• are consistent with the Western Australian government wages policy;



• improve the culture and relations between staff and management and reduce disputations without diluting managerial prerogative; and



• are simple, unambiguous and easy for both parties to understand.

[10] The MUA bargaining committee identified among their interests the desire to:

● provide flexibility and efficiency to enhance competitiveness in the context of alternative operators in a manner which doesn’t significantly impact upon the work/life balance and working conditions currently enjoyed by employees;

● improve the relationship between management and the workforce and promote a healthy and happy work environment for management and employees;

● secure an easy to understand, unambiguous document; and

● actively contribute to the future direction of the Port with confidence that employee input will be given genuine consideration.

[11] The collaborative approach and level of commitment shown by the parties in working towards achieving their interests is a tribute to the efforts of the MUA official and the employee bargaining committee charged with representing the workforce and Fremantle Ports’ management and Human Resources team.

Better off overall test

[12] The Commission is required to be satisfied that each employee would be better off overall under the Agreement as compared to the relevant Award. Section 193(1) of the Act is couched in the following terms:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[13] This requires a global assessment to be conducted, rather than the identification of any single provision. As defined in the 5^th edition of the Australian Concise Oxford Dictionary ‘overall’ means “taking everything into account”, “taken as a whole”.

[14] The Full Bench in Armacell Australia Pty and Others 2explained the BOOT in the following manner:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement…”

[15] The Agreement provides for an annualised salary which provides employees with remuneration well in excess of that contained in the Port Authorities Award 2010 for the comparable classifications. Increased overtime rates, provision for employees to bank additional overtime hours to facilitate the taking of paid time off, improved long service leave entitlements and provision for employer supplied work clothing. Under the Agreement some entitlements have been eliminated or reduced, however the terms and conditions under the Agreement taken overall are more beneficial than the Award

Conclusion

[16] Taking into account the higher base rates of pay and other more beneficial provisions and entitlements under the Agreement, and balancing these benefits with the terms of the Agreement that are less beneficial than the Award, I am satisfied that employees will be better off overall under the Agreement.

[17] The MUA has stated in its F18 that it wishes to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this employee organisation.

[18] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[19] The Agreement is approved. In accordance with s.54(1), the Agreement will operate 7 days from approval. The nominal expiry date of the Agreement is 3 years from the date of commencement of the Agreement.

DEPUTY PRESIDENT

 1   S.576(2)(aa)

 2   [2010] FWAFB 9985 at [41].

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