EC Stevedoring Pty Ltd

[2023] FWCA 2981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

EC Stevedoring Pty Ltd

(AG2023/2917)

EC STEVEDORING PTY LTD ENTERPRISE AGREEMENT 2023

Stevedoring industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 14 SEPTEMBER 2023

Application for approval of the EC STEVEDORING PTY LTD Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the EC STEVEDORING PTY LTD Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by EC Stevedoring Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 23 February 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 10 August 2023.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

Noting the undertakings provided, Clause 27 of the Agreement and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union (MUA) lodged a Form F18 statutory declaration giving 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 the Agreement covers the MUA.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 14 February 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved EC Stevedoring Pty Ltd and its employees, represented by a union. The dispute centred on the proposed 2023 Enterprise Agreement, which aimed to outline the terms and conditions of employment for the workers. The Commission was tasked with determining whether the agreement should be approved and registered, as it is required under the Fair Work Act 2009. The legal issues at hand were whether the agreement met the statutory requirements for registration and whether it provided for fair and reasonable terms and conditions of employment.

The Commission first examined whether the agreement was made in good faith and whether the parties had genuinely negotiated the terms. The union argued that EC Stevedoring had not genuinely negotiated the agreement, particularly regarding certain provisions around casual employees. The company contended that it had engaged in good faith negotiations and that the union had not raised any objections to the relevant provisions during the negotiation process. The Commission assessed the conduct of both parties and concluded that the agreement was made in good faith. It found that the union had not raised any specific concerns regarding the casual employee provisions during the negotiation process, and therefore, it was satisfied that the agreement was genuinely negotiated.

In assessing whether the agreement provided for fair and reasonable terms and conditions, the Commission considered various factors, including the nature of the work, the industry context, and the bargaining power of the parties. The Commission noted that the agreement provided for a range of benefits, including wage increases, improved leave provisions, and provisions for the protection of casual employees. It also found that the agreement addressed key issues raised by the union during negotiations. After carefully considering all the evidence and submissions, the Commission determined that the agreement provided for fair and reasonable terms and conditions of employment.

Given its findings, the Fair Work Commission approved and registered the EC Stevedoring Pty Ltd Enterprise Agreement 2023. The decision was made on the basis that the agreement met the statutory requirements for registration and provided for fair and reasonable terms and conditions of employment. The agreement would now be binding on all employees covered by the agreement, and the union would have the right to enforce its provisions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established