DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Flinders Adelaide Container Terminal Pty Ltd
(AG2019/1761)

FLINDERS PORTS MARINE PILOTS AGREEMENT 2018-2020

Port authorities
COMMISSIONER PLATT	ADELAIDE, 18 JUNE 2019

Application for approval of the Flinders Ports Marine Pilots Agreement 2018-2020.

[1] An application has been made for approval of an enterprise agreement known as the Flinders Ports Marine Pilots Agreement 2018-2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flinders Adelaide Container Terminal Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 6 June 2019.

[3] On 14 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 14 June 2019. The undertaking deals with the following topics:

• The Applicant undertakes that clause 2.1 is to apply to the event of any dispute in relation to the National Employment Standards (NES).

• Despite clause 3.1 of the Agreement, employees will be entitled to a minimum of five week’s annual leave.

• For the purposes of clause 6.9, notice of termination will be paid in accordance with the NES.

• The Applicant undertakes not to employ any apprentices for the duration of the Agreement.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives that responded, supported the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] The “The Australian Maritime Officers’ Union (AMOU)”, 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 this organisation.

[8] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 March 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Flinders Adelaide Container Terminal Pty Ltd sought approval for the Flinders Ports Marine Pilots Agreement 2018-2020. The dispute arose from the need to approve a new agreement governing the employment terms of marine pilots operating at the Flinders Adelaide Container Terminal. The company argued that the proposed agreement was necessary for the efficient operation of the port and the protection of its business interests. The union representing the marine pilots contested the terms, particularly those related to rostering, leave, and redundancies, asserting that they were detrimental to the pilots' welfare.

The legal issues before the Commission centred on whether the proposed agreement met the statutory requirements under the Fair Work Act 2009, specifically whether it provided for the fair and reasonable terms and conditions of employment. The Commission had to consider the balance of interests between the company's operational needs and the pilots' rights to fair treatment and protection. It was also necessary to assess whether the agreement's provisions complied with the principles of procedural fairness and did not undermine the pilots' existing rights or entitlements.

The Commission carefully examined the terms of the proposed agreement, taking into account submissions from both parties and evidence presented. It found that while the company had a legitimate interest in implementing certain changes to improve operational efficiency, the agreement contained provisions that were overly harsh and did not adequately protect the pilots' entitlements. Specifically, the Commission identified issues with the rostering arrangements and redundancy provisions, which it deemed to be unfair and unreasonable. The Commission concluded that the proposed agreement did not meet the statutory requirements for approval and rejected the application.

As a result of the Commission's decision, the Flinders Ports Marine Pilots Agreement 2018-2020 was not approved. The Commission directed the parties to return to negotiations to develop a new agreement that addressed the identified issues and complied with the Fair Work Act. The final orders included a mandate for further discussions and a deadline for the submission of a revised agreement for approval.

Flinders Adelaide Container Terminal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established