Australian Port Services (Vic) Pty Ltd t/a Ausport Marine

[2021] FWCA 2038

[2021] FWCA 2038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Port Services (Vic) Pty Ltd t/a Ausport Marine
(AG2021/4429)

AUSPORT MARINE AND MUA ENTERPRISE AGREEMENT 2020

Port authorities
DEPUTY PRESIDENT MANSINI	MELBOURNE, 15 APRIL 2021

Application for approval of the Ausport Marine and MUA Enterprise Agreement 2020.

[1] Ausport Marine has applied for approval of a single enterprise agreement known as the Ausport Marine and MUA Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application and whether the pre-approval requirements were met.

[3] Ausport Marine sought to correct irregularity in the form of the original application which was not opposed. In the circumstances, I am satisfied that this should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] The steps taken to notify the relevant employees of the vote were not strictly compliant with the requirements of s.180(3) as the notice was given during (and not by the start of) the access period. Notwithstanding this non-compliance, 18 of the 20 employees covered cast a vote and a clear majority voted to approve the Agreement. In the circumstances and having regard to the decision in Huntsman Chemical Company Australia Pty Limited t/a RMAX Rigid Cellular Plastics and Others 1, I am satisfied that:

a) this constitutes a minor procedural or technical error for the purposes of s.188(2)(a); and
b) the employees to be covered by the Agreement were not likely to have been disadvantaged by this error within the meaning of s.188(2)(b).

[5] Accordingly, I am satisfied that the Agreement has been genuinely agreed pursuant to s.188(2) of the Act.

[6] On the basis of the material contained in the application and related materials, 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.

[7] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 15 April 2021 and, in accordance with s.54, will operate from 22 April 2021. The nominal expiry date of the Agreement is 22 April 2024.

DEPUTY PRESIDENT

 1   [2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

<AE511089  PR728620>