Australian Port Services (NSW) Pty Ltd T/A Ausport Marine

[2020] FWCA 5652

[2020] FWCA 5652

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Australian Port Services (NSW) Pty Ltd T/A Ausport Marine
(AG2020/2779)

AUSPORT MARINE - MARITIME UNION OF AUSTRALIA DIVISION OF THE CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION (CFMMEU) COLLECTIVE AGREEMENT 2019

Maritime industry
COMMISSIONER CIRKOVIC	MELBOURNE, 22 OCTOBER 2020

Application for approval of the Ausport Marine - Maritime Union of Australia Division of Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) Collective Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Ausport Marine - Maritime Union of Australia Division of Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) Collective Agreement 2019 (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 Services (NSW) Pty Ltd T/A Ausport Marine. The Agreement is a single enterprise agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in 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.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Construction, Forestry, Maritime, Mining and Energy Union, 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), I note that the Agreement covers the organisation.

[5] I note that the Notice of Employee Representational Rights provided to employees was not in the prescribed form. 1 Firstly, it incorrectly identifies the title of the Agreement. Secondly, it stated that employees with questions could visit the Fair Work Ombudsman’s website whereas the prescribed notice states that employees may direct questions to the Fair Work Ombudsman or the Fair Work Commission. Finally, it contains the logo of the Applicant. I am satisfied that in all of the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,2this constitutes a minor procedural or technical error for the purposes of s188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[6] I note that clause 4.4 of the Agreement states that the date of commencement shall be from 1 September 2019 which is inconsistent with the requirements of s.54(1) of the Act.

[7] The Agreement was approved on 22 October 2020 and, in accordance with s.54, will operate from 7 days from the date of approval of the Agreement, being 29 October 2020. The nominal expiry date of the Agreement is 1 September 2023.

COMMISSIONER

Annexure A:

 1 See section 174(1A) Fair Work Act 2009.; Fair Work Regulations 2009 r 2.1, Scheduled 2.1.

 2   [2019] FWCFB 318.

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