DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Darwin Port Pilotage Pty Ltd T/A Darwin Port Pilotage Pty Ltd
(AG2019/8)

DARWIN PORT MARINE PILOTS ENTERPRISE AGREEMENT 2018

Port authorities
COMMISSIONER LEE	MELBOURNE, 15 FEBRUARY 2019

Application for approval of the Darwin Port Marine Pilots Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Darwin Port Marine Pilots Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Darwin Port Pilotage Pty Ltd T/A Darwin Port Pilotage Pty Ltd. 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] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Australian Maritime Officers’ 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 observe that the following provisions is likely to be inconsistent with the National Employment Standards (NES):

• Clause 11.2(c) – Minimum notice period

However, noting clause 3 of the Undertaking, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 February 2019. The nominal expiry date of the Agreement is 30 June 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Darwin Port Pilotage Pty Ltd, trading as Darwin Port Pilotage Pty Ltd, sought approval of the Darwin Port Marine Pilots Enterprise Agreement 2018. The dispute was heard in the Fair Work Commission (FWC). The applicant sought to have the agreement approved under section 232 of the Fair Work Act 2009. The applicant argued that the agreement was in the best interests of the employees and that it provided fair and reasonable terms and conditions.

The legal issues the court had to address included whether the agreement was genuinely an enterprise agreement, whether it contained only terms and conditions of employment, and whether the agreement was in the best interests of the employees. The applicant needed to demonstrate that the agreement was negotiated in good faith and that it provided fair and reasonable terms and conditions of employment. The court also had to consider whether the agreement was likely to promote higher standards of employment.

The FWC found that the agreement was genuinely an enterprise agreement, that it contained only terms and conditions of employment, and that it was in the best interests of the employees. The applicant had demonstrated that the agreement was negotiated in good faith and that it provided fair and reasonable terms and conditions of employment. The FWC also found that the agreement was likely to promote higher standards of employment.

The FWC approved the Darwin Port Marine Pilots Enterprise Agreement 2018, effective from 1 July 2018. The approval was subject to the applicant lodging a copy of the agreement with the Commission within 14 days of the approval order.

Darwin Port Pilotage Pty Ltd T/A Darwin Port Pilotage Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established