DP World Sydney Limited Summary

[2024] FWCA 1354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DP World Sydney Limited

(AG2024/1057)

DP WORLD SYDNEY ENTERPRISE AGREEMENT 2024

Stevedoring industry
COMMISSIONER MATHESON	SYDNEY, 16 APRIL 2024

Application for approval of the DP World Sydney Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the DP World Sydney Enterprise Agreement 2024 (Agreement). The application was made by DP World Sydney 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 matter before the Fair Work Commission involved DP World Sydney Limited, which sought approval for the DP World Sydney Enterprise Agreement 2024. The primary dispute centred on whether the proposed terms and conditions of employment as outlined in the agreement were fair and reasonable for the employees covered by the agreement. The Commission was tasked with determining the fairness of the agreement under the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed agreement met the "better off overall test" and if it provided for a fair and reasonable terms of employment. The Commission had to consider the financial impact of the proposed agreement on the employees, as well as the bargaining positions of both parties and any relevant public interest considerations. Additionally, the Commission assessed whether the agreement adhered to the principles of good faith bargaining and whether it provided for adequate mechanisms for dispute resolution.

The Commission found that the proposed agreement met the better off overall test and was fair and reasonable for the employees. The Commission noted that the agreement provided for a modest increase in wages and included provisions for improved working conditions. The Commission also considered the bargaining positions of the parties and found that the agreement was the product of genuine good faith bargaining. After weighing all relevant factors, the Commission approved the DP World Sydney Enterprise Agreement 2024.

The Fair Work Commission approved the DP World Sydney Enterprise Agreement 2024, finding that it was fair and reasonable for the employees. The Commission's decision recognised the modest wage increases and improved working conditions provided for in the agreement. The Commission also noted that the agreement was the product of genuine good faith bargaining between the parties. The approval of the agreement ensures that the terms and conditions of employment for the employees covered by the agreement are regulated by the approved agreement.

DP World Sydney Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established