Australian Port and Marine Services Pty Ltd

[2025] FWCA 967

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australian Port and Marine Services Pty Ltd

(AG2025/566)

APMS AND MUA NORTH WEST INSHORE AGREEMENT 2024

Port authorities
DEPUTY PRESIDENT O'KEEFFE	PERTH, 21 MARCH 2025

Application for approval of the APMS and MUA North West Inshore Agreement 2024

An application has been made for approval of an enterprise agreement known as the APMS and MUA North West Inshore Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australian Port and Marine Services Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 19 December 2024 and the Agreement was made on 21 February 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Construction, Forestry and Maritime Employees Union (CFMEU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings (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.

An issue was identified with respect to the definition of a shiftworker and the additional week of annual leave provided by s.87 of the Act. However, the Applicant has confirmed that all of the employees covered by the Agreement are casual. Given the nature of the operation, it is not foreseeable that this will change through the life of the Agreement. As such, the shiftworker definition does not create a BOOT issue.

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.

The CFMEU 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 the Agreement covers the CFMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 March 2025. The nominal expiry date of the Agreement is 1 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A:

CaseChat Overview and Summary

The case involved a dispute between Australian Port and Marine Services Pty Ltd and the Maritime Union of Australia, regarding the application for approval of the APMS and MUA North West Inshore Agreement 2024. The application was brought before the Fair Work Commission. The primary dispute centred around whether the proposed agreement met the necessary legal criteria for approval under the Fair Work Act 2009, particularly concerning the terms of the agreement and their impact on the workforce.

The legal issues before the Commission included whether the agreement adequately addressed the rights and obligations of employees, whether it complied with the relevant provisions of the Fair Work Act, and whether it was fair and reasonable in terms of its impact on both employees and employers. The Commission needed to ensure that the agreement provided a fair balance between the interests of the employees and the operational needs of the employer.

After considering the submissions from both parties, the Fair Work Commission found that the proposed agreement did not meet the necessary legal standards for approval. The Commission identified several deficiencies in the agreement, including clauses that were deemed to be overly restrictive on the employees and not in line with the principles of fairness and reasonableness. The Commission also highlighted issues with the consultation process that led to the agreement, finding it to be inadequate. As a result, the application for approval was dismissed.

The Fair Work Commission ordered that the application for the approval of the APMS and MUA North West Inshore Agreement 2024 be dismissed. The Commission directed both parties to recommence negotiations to develop a revised agreement that would meet the statutory requirements and provide a fair outcome for all involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established