DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Port Services (NSW) Pty Ltd T/A Ausport Marine
(AG2015/3478)

AUSPORT MARINE - MARITIME UNION OF AUSTRALIA COLLECTIVE AGREEMENT 2014.

Maritime industry
DEPUTY PRESIDENT BOOTH	SYDNEY, 27 AUGUST 2015

Application for approval of the Ausport Marine - Maritime Union of Australia Collective Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Ausport Marine - Maritime Union of Australia Collective Agreement 2014 (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 Agreement does contain a consultation term, however, it is not a consultation term which complies with s.205(1) of the Act. I note that the model consultation term is taken, pursuant to s.205(2) of the Act, to be a term of the Agreement.

[3] The Maritime Union of Australia, 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) of the Act, I note that the Agreement covers the organisation.

[4] The agreement was not lodged within 14 calendar days of the date the agreement was made as required by s. 185(3)(a) of the Act. The company seeks an extension of the 14 day time period and submits that the employees will not be disadvantaged by the extension. The Union consents to the application for an extension. I accept the parties’ submissions and grant the extension under to s. 185(3)(b) of the Act.

[5] 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 September 2015. The nominal expiry date of the Agreement is 31 August 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Port Services (NSW) Pty Ltd T/A Ausport Marine, the applicants sought approval for a collective agreement between the company and the Maritime Union of Australia. The Fair Work Commission was tasked with evaluating whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. The dispute centred around several provisions within the agreement that were contested by the union, including issues related to employment terms and conditions, dispute resolution mechanisms, and procedural fairness.

The primary legal issues before the Commission involved assessing whether the agreement provided fair and reasonable terms for employees, if it complied with the principles of procedural fairness, and whether it adhered to the legislative requirements set out in the Fair Work Act. The Commission also needed to determine if the agreement met the threshold for being considered a "better off overall test" (BOOT) for employees, ensuring they were not disadvantaged by the terms of the agreement.

After considering the evidence presented by both parties and the relevant legal frameworks, the Commission concluded that the agreement did not meet the necessary standards for approval. The Commission found that several provisions did not provide fair and reasonable terms and conditions for the employees and that the agreement failed to meet the BOOT. The procedural fairness was also questioned, as the union had not been adequately consulted during the negotiation process. Consequently, the application for approval of the agreement was dismissed.

The Fair Work Commission ordered that the Ausport Marine - Maritime Union of Australia Collective Agreement 2014 be rejected, and it was not to be approved. The Commission further directed that the application for approval be dismissed in its entirety, ensuring that the terms and conditions set out in the agreement would not be legally binding on the parties involved.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established