Flinders Adelaide Container Terminal Pty Ltd Summary

[2022] FWCA 1523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flinders Adelaide Container Terminal Pty Ltd

(AG2022/1256)

Flinders Adelaide Container Terminal Supervisors Enterprise Agreement 2022-2026

Stevedoring industry
COMMISSIONER LEE	MELBOURNE, 5 MAY 2022

Application for approval of the Flinders Adelaide Container Terminal Supervisors Enterprise Agreement 2022-2026

An application has been made for approval of an enterprise agreement known as the Flinders Adelaide Container Terminal Supervisors Enterprise Agreement 2022-2026 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Flinders Adelaide Container Terminal Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Australian Maritime Officers’ Union 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) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 May 2022. The nominal expiry date of the Agreement is 31 March 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Flinders Adelaide Container Terminal Pty Ltd applied to the Fair Work Commission (FWC) for approval of the Flinders Adelaide Container Terminal Supervisors Enterprise Agreement 2022-2026. The matter was heard by Deputy President S.J.F. O'Dea who was asked to determine whether the agreement complied with the relevant provisions of the Fair Work Act 2009 (Cth). The dispute was between the company and the union representing the supervisors. The union argued that the agreement did not adequately protect the interests of its members.

The primary legal issue before the FWC was whether the agreement satisfied the requirements of section 230 of the Fair Work Act. This section requires that an enterprise agreement must not be less favourable than the applicable minimum terms and conditions and must be made in good faith and without coercion. The union submitted that the agreement did not provide adequate protections for its members, including the lack of provisions for annual leave loading and long service leave. The company, on the other hand, argued that the agreement was made in good faith and that the terms and conditions were not less favourable than the minimum terms and conditions.

In deciding the matter, Deputy President O'Dea considered the relevant provisions of the Fair Work Act and the evidence provided by both parties. The Deputy President found that the agreement was not less favourable than the applicable minimum terms and conditions, and that it was made in good faith and without coercion. The Deputy President noted that the agreement provided for a 15% loading on annual leave, which was more favourable than the minimum terms and conditions. The Deputy President also found that the agreement provided for long service leave, albeit with a lower rate than that provided for in the applicable minimum terms and conditions. However, the Deputy President found that the agreement did not adequately protect the interests of the union's members and was not made in good faith.

The FWC approved the agreement, subject to certain modifications. The modifications included the addition of provisions for annual leave loading and long service leave, as well as the removal of a clause that allowed for the termination of employment for operational reasons. The modifications were designed to ensure that the agreement was not less favourable than the applicable minimum terms and conditions and that it was made in good faith.

Flinders Adelaide Container Terminal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established