DP World Melbourne Limited

[2024] FWCA 1358

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DP World Melbourne Limited

(AG2024/1059)

DP WORLD MELBOURNE ENTERPRISE AGREEMENT 2024

Stevedoring industry
COMMISSIONER MATHESON	SYDNEY, 16 APRIL 2024

Application for approval of the DP World Melbourne Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the DP World Melbourne Enterprise Agreement 2024 (Agreement). The application was made by DP World Melbourne Limited (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

Changes to the Act came into effect on 6 June 2023 in relation to genuine agreement. The Form F17A indicates that the notification time for the Agreement was 31 March 2023. In these circumstances and as a consequence of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act), clause 66 of Part 13 of Schedule 1 of the Act has the effect that despite the amendments made to the Act by Part 14 of Schedule 1 to the Amending Act, Part 2-4 of the Act continues to apply as if the amendments had not been made. The application has been assessed on this basis, taking into account the provisions of Part 2-4 of the Act in relation to genuine agreement in force immediately prior to 6 June 2023.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given 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 that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 April 2024. The nominal expiry date of the Agreement is 31 January 2028.

COMMISSIONER

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CaseChat Overview and Summary

The case involved DP World Melbourne Limited, which sought approval of the DP World Melbourne Enterprise Agreement 2024 from the Fair Work Commission. The dispute was centred on the terms and conditions of employment for certain employees within the company. The matter was brought before the Fair Work Commission, which is the industrial relations tribunal in Australia responsible for handling employment-related disputes.

The primary legal issue before the Commission was whether the proposed agreement complied with the relevant legislative framework, specifically the Fair Work Act 2009. The Commission had to consider whether the agreement met the requirements for approval, including that it provided for the minimum terms and conditions, did not undermine the capacity of employees to protect their health and safety, and did not unfairly discriminate against employees. The Commission also had to determine if the agreement had been made in good faith and whether the process of its formation was fair.

In examining the agreement, the Fair Work Commission took into account the submissions from both parties, the evidence presented, and the applicable legal standards. The Commission found that the agreement contained provisions that were consistent with the statutory requirements. It also found that the process by which the agreement was negotiated and agreed upon was fair and that the agreement did not unfairly disadvantage any group of employees. Therefore, the Commission determined that the agreement should be approved as it complied with the necessary legal criteria.

Consequently, the Fair Work Commission approved the DP World Melbourne Enterprise Agreement 2024, recognising it as a valid agreement under the Fair Work Act 2009. This decision provided certainty for the employer and the employees covered by the agreement, establishing the terms and conditions of employment for the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established