Aurizon Port Services Pty Ltd T/A Aurizon Port Services

[2022] FWCA 1123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aurizon Port Services Pty Ltd T/A Aurizon Port Services

(AG2022/720)

Aurizon Port Services Stevedoring Enterprise Agreement 2021

Stevedoring industry
COMMISSIONER SIMPSON	BRISBANE, 1 APRIL 2022

Application for the approval of the Aurizon Port Services Stevedoring Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Aurizon Port Services Stevedoring Enterprise Agreement 2021 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Aurizon Port Services Pty Ltd T/A Aurizon Port Services (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting clause 3.2 of the Agreement, 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.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) lodged a Form F18 statutory declaration giving 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 CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Aurizon Port Services Pty Ltd, trading as Aurizon Port Services, applied to the Fair Work Commission for the approval of the Aurizon Port Services Stevedoring Enterprise Agreement 2021. The dispute centred around the validity and enforceability of the proposed agreement, which sought to regulate the terms and conditions of employment for stevedores within the company. The Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the agreement provided for the compulsory resolution of all disputes through a designated dispute resolution process, as required by section 233 of the Fair Work Act. Specifically, the Commission had to assess whether the agreement contained the necessary provisions for the mandatory referral of disputes to a specified dispute resolution process, and if those provisions were sufficiently clear and unambiguous. Furthermore, the Commission needed to determine whether the agreement was free from any defects that could render it invalid or unenforceable.

In its decision, the Fair Work Commission found that the Aurizon Port Services Stevedoring Enterprise Agreement 2021 did indeed contain the requisite provisions for the compulsory resolution of disputes. The agreement explicitly outlined a process for the mandatory referral of disputes to a dispute resolution body, which was deemed to be both clear and unambiguous. The Commission concluded that the agreement satisfied the statutory requirements for approval under section 233 of the Fair Work Act. Consequently, the Commission approved the agreement, finding it to be valid and enforceable.

The Fair Work Commission approved the Aurizon Port Services Stevedoring Enterprise Agreement 2021, determining that it met all necessary statutory requirements. The Commission's approval signifies that the agreement is now legally binding on the parties involved and can be enforced accordingly. This decision serves to uphold the integrity of the enterprise bargaining process and ensures that the terms and conditions of employment for the affected employees are regulated in accordance with the provisions of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established