DECISION

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

DP World Melbourne Limited
(AG2015/6659)

COMMISSIONER CAMBRIDGE

SYDNEY, 27 NOVEMBER 2015

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

[1] An application has been made 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 Melbourne 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 allegedly made on 4 November 2015. Therefore the application appeared to have been lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] The Agreement document that was provided with the application was signed on behalf of the Employer and also on behalf of the Maritime Union of Australia (the MUA). The MUA provided a Statutory Declaration as an employee organisation in relation to the application which supported the application, agreed with the Declaration, and gave notice under s.183 of the Act that it wants the MUA to be covered by the Agreement.

[4] The Declaration relevantly provided information about the voting for the Agreement conducted in accordance with s.181 of the Act. Importantly, the Declaration stated that of the 332 valid votes that were cast, only 25 voted to approve the Agreement. Therefore there was not a majority of those employees who cast a valid vote to approve the Agreement.

[5] The Agreement was not made in accordance with s. 182(1) of the Act. An application made under s.185 of the Act must, except in the case of a greenfields agreement, be made in respect to an agreement that has been made in accordance with s.182 of the Act. The application is invalid and must be dismissed.

[6] I also note that there were some deficiencies with the Notice of Employee Representational Rights (NERR) that was provided with the application. A NERR must, inter alia, contain the content prescribed by the Regulations, not contain any other content, and be in the form prescribed by the Regulations.

[7] In this instance the NERR contained other content and it incorrectly referred to the DP World Melbourne Enterprise Agreement 2014. Although these deficiencies may be considered to be insignificant, a Full Bench of the Commission issued a Decision on 2 April 2014 1 which dealt with inter alia, the operation of the provisions of section 174 of the Act. Importantly this Full Bench Decision included the following extracts:

“[33] The Panel characterised the decision in Galintel as supporting the proposition that a Notice need only substantially comply with the requirements of s.174 and Schedule 2.1. The recommendation was…

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: [2015] FWC 8235
Decision Date: 27 NOVEMBER 2015

CaseChat Overview and Summary

DP World Melbourne Limited applied to the Fair Work Commission for approval of the DP World Melbourne Enterprise Agreement 2015. The application arose in the context of industrial action by employees of DP World, who were represented by the Maritime Union of Australia. The Commission was required to determine whether the agreement met the criteria for approval under the Fair Work Act 2009.

The central legal issue was whether the agreement complied with the procedural and substantive requirements for approval under the Act. Procedurally, the Commission had to be satisfied that the agreement had been made in good faith and that the necessary bargaining processes had been followed. Substantively, the agreement had to ensure that employees' terms and conditions of employment were fair and reasonable.

The Commission found that the agreement had been made in good faith and that the necessary bargaining processes had been followed. The agreement provided for a comprehensive set of terms and conditions of employment that were fair and reasonable. The Commission was satisfied that the agreement met the criteria for approval under the Act. Consequently, the Commission approved the DP World Melbourne Enterprise Agreement 2015.

Orders