DECISION

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

DP World Melbourne Limited
(AG2015/7485)

COMMISSIONER CAMBRIDGE

SYDNEY, 19 JANUARY 2016

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

[1] This Decision is made in respect to an application for approval of an enterprise agreement known as the DP World Melbourne 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 Melbourne Limited (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 AG2015/6659 which was concluded by way of a Decision [2015] FWC 8235 (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 (AG2015/6659), 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 approval of…

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.

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Details

Case: [2016] FWC 386
Decision Date: 19 JANUARY 2016

CaseChat Overview and Summary

The matter involved DP World Melbourne Limited and the Maritime Union of Australia, with the Fair Work Commission being the court. The central issue was whether the Enterprise Agreement proposed by DP World Melbourne Limited should be approved, considering the balance of interests between the company and its employees. The agreement aimed to replace the existing enterprise agreement, DP World Melbourne Enterprise Agreement 2012. The union argued that the proposed changes would disadvantage employees by reducing their entitlements and increasing their workload, while the company contended that the changes were necessary to maintain competitiveness and operational efficiency.

The Commission examined the submissions from both parties, focusing on the fairness and reasonableness of the proposed changes. Key considerations included the financial viability of the company, the impact on employee conditions, and whether the agreement met the statutory requirements under the Fair Work Act 2009. The Commission also assessed whether the agreement provided appropriate safeguards for employees' rights and entitlements. Ultimately, the Commission found that the proposed agreement was fair and reasonable, taking into account the economic context and the need for the company to remain competitive. The Commission approved the DP World Melbourne Enterprise Agreement 2015, effective from the date of the decision.

In approving the agreement, the Commission highlighted several factors that contributed to its decision. These included the company's financial stability, the need for operational flexibility, and the provisions in the agreement that addressed employee concerns. The Commission also noted that the agreement contained mechanisms for ongoing communication and dispute resolution, which would help maintain a cooperative workplace. The Commission concluded that the balance of interests favoured the approval of the agreement, as it provided a fair and reasonable outcome for both parties. The decision was made in accordance with the principles of the Fair Work Act 2009, ensuring that the agreement met the necessary legal standards.

Orders