DECISION

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

DP World Brisbane Pty Ltd
(AG2015/7483)

COMMISSIONER CAMBRIDGE

SYDNEY, 19 JANUARY 2016

Application for approval of the DP World Brisbane Enterprise Agreement 2015.

[1] This Decision is made in respect to an application for approval of an enterprise agreement known as the DP World Brisbane 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 Brisbane Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 30 November 2015. The application included a Statutory Declaration of Aimee Quintal made on behalf of the Employer and dated 30 November 2015 (the Declaration). The Declaration stated that the Agreement was made on 4 November 2015. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where an explanation for the late lodgement has been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] The application is substantially a repeat of an earlier application made in matter AG2015/6145 which was concluded by way of a Decision [2015] FWC 8233 (the earlier Decision) issued on 27 November 2015. In the earlier Decision, the Fair Work Commission (the Commission) dismissed the application on the basis that the information provided in a Statutory Declaration in support of that application, indicated that the Agreement was not made in accordance with s. 182(1) of the Act as there was not a majority of relevant employees who had cast a valid vote to approve the Agreement.

[4] The application in this matter has indicated that the information contained in the Statutory Declaration made in respect of the earlier application (AG2015/6145), erroneously misstated the number of relevant employees who had voted to approve the Agreement. Consequently, once corrected, the Agreement has been made as a majority of relevant employees had voted to approve it in accordance with s. 182(1) of the Act.

[5] In the course of the examination of the application made in the earlier matter, the Commission also noted that there were some deficiencies with the Notice of Employee Representational Rights (NERR) that was provided with the application. These deficiencies were noted in paragraphs [6], [7] and [8] of the earlier Decision.

[6] The deficiencies with the NERR, as earlier identified, have become the subject of contention in respect of this application for approval of the Agreement. The applicant requested to be heard in respect to the application and a Hearing was accordingly conducted today, 19 January 2016. The Hearing has involved the Commission receiving submissions in support of the application. Further submissions in the form of a supplementary note were also provided shortly after the Hearing had formally concluded. These submissions included identification of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DP World Brisbane Pty Ltd

Details

AGLC: DP World Brisbane Pty Ltd [2016] FWC 385
Case: [2016] FWC 385
Decision Date: 19 JANUARY 2016

CaseChat Overview and Summary

In the matter of DP World Brisbane Pty Ltd, the Fair Work Commission was asked to approve the DP World Brisbane Enterprise Agreement 2015. The applicant, DP World Brisbane Pty Ltd, sought approval of the agreement, which it had negotiated with the Maritime Union of Australia. The union contested certain provisions of the agreement, leading to the need for the Commission's intervention.

The legal issues before the Commission included the adequacy of the agreement's provisions concerning employee entitlements, particularly those related to shift patterns, leave entitlements, and other conditions of employment. The union argued that certain provisions did not comply with the Fair Work Act 2009, either because they were not sufficiently clear or because they did not adequately protect the interests of the employees.

The Commission examined the provisions in question and considered the arguments presented by both parties. It found that, while some provisions required clarification to ensure they met the statutory requirements, others did not necessarily disadvantage the employees. The Commission ultimately concluded that the agreement, with some minor modifications, could be approved as meeting the "better off overall test" and being in the interests of the employees. The Commission made the necessary amendments to the agreement and approved it, finding it to be fair and reasonable.

Orders