Application by Fremantle Ports
[2017] FWCA 2071
•12 APRIL 2017
| [2017] FWCA 2071 |
| FAIR WORK COMMISSION |
| decision |
Fair Work Act 2009
s.185—Enterprise agreement
Application by Fremantle Ports
(AG2017/1151)
Fremantle Ports Operations and Services Enterprise Agreement 2017
| Port Authorities | |
| Deputy President Bull | PERTH, 12 APRIL 2017 |
Application for approval of the Fremantle Ports Operations and Services Enterprise Agreement 2017 - Agreement negotiated under the Commission’s New Approaches framework.
An application has been made by Fremantle Ports (the applicant/Fremantle Ports) for the approval of an enterprise agreement known as the Fremantle Ports Operations and Services 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.
The Agreement will replace the Fremantle Ports Operations and Services Agreement 2012, all previous awards and agreements, orders and memoranda, work practices or arrangements, written or unwritten, which applied prior to the introduction of this Agreement.
The Agreement covers employees of the applicant who are members, or eligible to be members, of the Maritime Union of Australia (MUA) and who are primarily engaged in bulk materials handling, port operations and maintenance, and in the provision of security, emergency and port services in the classifications defined in Clause 7 – Classification & Rates of Pay. At the time of voting for the Agreement there were 118 employees covered by the Agreement.
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 was fairly chosen.
The 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.
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
The negotiations for this Agreement were conducted in line with 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]
Interest based bargaining is a voluntary exercise that both Fremantle Ports and the MUA committed themselves, having jointly participated in a training and education program run by the Commission. At the commencement of the negotiations Fremantle Ports identified their bargaining interests in negotiating agreements to cover its Operations, 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.
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 and unambiguous document; and
· actively contribute to the future direction of the Port with confidence that employee input will be given genuine consideration.
The level of commitment shown by the parties in achieving their interests in a collaborative manner is a tribute to the efforts of the MUA bargaining committee and its official and to the Fremantle Ports’ management and Human Resources team.
Better off overall test
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 states:
“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.”
This requires a global assessment to be conducted, rather than the identification of any single provision. As defined in the 5th edition of the Australian Concise Oxford Dictionary ‘overall’ means “taking everything into account”, “taken as a whole”.
This approach was taken by the Full Bench in Armacell Australia Pty and Others[2] where they stated:
“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…”
The terms and conditions under the Agreement are significantly more beneficial than the Award. This includes rates of pay, transmission of business provisions, hours of work, shift penalties, overtime, allowances and the provision of annualised salaries.
Under the Agreement some entitlements are inferior to the relevant reference instrument, however the numerous Agreement benefits which are in excess of the Award entitlements allows the Agreement to satisfy the test at s.193(1) of the Act without difficulty.
Conclusion
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.
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.
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.
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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