DP World Brisbane Limited T/A DP World Brisbane

[2024] FWCA 2791

[2024] FWCA 2791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DP World Brisbane Limited T/A DP World Brisbane

(AG2024/2580)

DP WORLD BRISBANE (CEPU) ENTERPRISE AGREEMENT 2024

Stevedoring industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 29 JULY 2024

Application for approval of the DP World Brisbane (CEPU) Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the DP World Brisbane (CEPU) Enterprise Agreement 2024 (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 Brisbane Limited (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different name for the Agreement to that which was eventually made. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

1. The Agreement contains an “Employee Representation” provision at Clause 9. The provisions of this clause are in some circumstances, less favourable than the Workplace delegates’ rights term that is contained in the Stevedoring Industry Award 2020 (SIA). Further, noting clauses 4.2.1 and 4.3 of the Agreement, I note that the SIA (as varied from time to time) is incorporated into the Agreement provided that, where there is any inconsistency, this clause provides for the Agreement to apply and for the inconsistent Award provisions not to apply. The consequence of this would be inconsistent with the requirements of s. 205A of the Act which requires that the more beneficial term of the Award or Agreement must apply. As the term in the Agreement results in a number of scenarios where the Agreement provisions are less favourable than the Workplace delegates’ rights term in the modern award pursuant to s.205A, I note that the ‘Employee Representation’ provision in the Agreement will not apply in respect of workplace delegates (as defined in the SIA) and the Workplace delegates’ rights term in the SIA (as varied from time to time) will instead apply. Consequently, the Employee Representation term in the Agreement at clause 9 will have no effect on Workplace Delegates.[2]

1. The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

1. Pursuant to s.190(3) of the Act, I accept the undertakings.

1. Subject to the undertakings referred to above, having regard to the Statement of Principles,[3] on the basis of the material contained in the application and accompanying declarations, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Agreement does not contain a model flexibility term compliant with the Act. I note that s.203(6) of the Act requires that a flexibility term must ensure that the flexibility arrangement must be able to be terminated by either the employee or the employer, giving written notice of not more than 28 days or by mutual agreement at any time. The Applicant made submissions about different notice requirements under the Stevedores Aard however pursuant to s.202(4) of the Act, which requires compliance with s.203 of the Act,[4] the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

·   Clause 11.7.6 – Withholding monies at termination

However, noting clause 4.1 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the ETU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 28 July 2028.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] s.205A(2)(a).

[3] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

[4] See s.202(1)(b) of the Act.

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