DECISION

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

DP World Australia Limited
(AG2015/6142)

DP WORLD SUPERVISORS & YARD PLANNERS ENTERPRISE AGREEMENT 2015

Stevedoring industry
COMMISSIONER CAMBRIDGE	SYDNEY, 2 DECEMBER 2015

Application for approval of the DP World Supervisors & Yard Planners Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the DP World Supervisors & Yard Planners Enterprise Agreement 2015(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DP World Australia Limited (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 12 November 2015. The application included a Statutory Declaration of Aimee Quintal made on behalf of the Employer and dated 12 November 2015 (the Declaration). The Declaration stated that the Agreement was made on 2 November 2015. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 2 December 2015. I note that the file has included a Statutory Declaration of Jarrod Moran made on behalf of the Australian Maritime Officers’ Union (the AMOU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 9 and a consultation term at clause 8.

[6] 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.

[7] The AMOU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMOU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 9 December 2015. The nominal expiry date of the Agreement as indicated in clause 5 of the Agreement, is 2 December 2019.

COMMISSIONER

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CaseChat Overview and Summary

DP World Australia Limited applied for the approval of the DP World Supervisors & Yard Planners Enterprise Agreement 2015 before the Fair Work Commission. The applicants, DP World Australia Limited, sought approval for an enterprise agreement that would govern the terms and conditions of employment for supervisors and yard planners within their operations. The Australian Council of Trade Unions (ACTU) opposed the application, raising concerns about the fairness and compliance of the agreement with the Fair Work Act 2009.

The primary legal issues before the Commission were whether the agreement met the requirements for authorisation under section 231 of the Fair Work Act and whether it was a "better off overall test" (BOOT) agreement. The ACTU argued that the agreement did not comply with the requirements for a BOOT agreement and that it failed to meet the Fair Work Act's standards for procedural and substantive fairness.

The Commission examined the procedural fairness of the bargaining process, including whether the agreement was the product of genuine and voluntary bargaining. The Commission also assessed the substantive fairness of the agreement, considering factors such as the provisions regarding wages, conditions, and dispute resolution mechanisms. After careful consideration, the Commission found that the agreement was the result of genuine bargaining and was procedurally fair. It further found that the agreement was substantively fair, meeting the requirements of the BOOT and the Fair Work Act.

The Commission approved the DP World Supervisors & Yard Planners Enterprise Agreement 2015, determining that it was a fair and reasonable agreement. The Commission's decision was based on its findings that the agreement was the product of genuine bargaining and met the statutory requirements for procedural and substantive fairness. The approved agreement now governs the terms and conditions of employment for supervisors and yard planners within DP World Australia Limited's operations.

DP World Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established