Flinders Adelaide Container Terminal Pty Ltd T/A Flinders Adelaide Container Terminal

[2023] FWCA 3154

[2023] FWCA 3154

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Flinders Adelaide Container Terminal Pty Ltd T/A Flinders Adelaide Container Terminal 

(AG2023/3264)

FLINDERS ADELAIDE CONTAINER TERMINAL DEPOT ENTERPRISE AGREEMENT 2022

Storage services
COMMISSIONER PLATT	ADELAIDE, 28 SEPTEMBER 2023

Application for approval of the Flinders Adelaide Container Terminal Depot Enterprise Agreement 2022

1. An application has been made for approval of an enterprise agreement known as the Flinders Adelaide Container Terminal Depot Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flinders Adelaide Container Terminal Pty Ltd T/A Flinders Adelaide Container Terminal (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 21 September 2023.

1. On 21 September 2023, I provided the parties with a table of issues to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

1. There are five National Employment Standard (NES) issues that require comment:

·  Clause 15.1.1 does not provide a fifth week of leave for shiftworkers. Section 87(1)(b) of the Act provides this extra week.

·  Clause 17.2 only provides three days of paid carer’s leave. Section 96(1) of the Act provides ten days paid personal/carer’s leave. Clause 17.5.1 also requires notice at least one hour prior to commencement of absence in order to access paid leave. Section 107(2) of the Act allows that notice of personal leave may be given after the leave has started.

·  Clause 21.2 states that employees must give five days’ notice, or at the least, prior notice of jury service. Section 110(2) of the Act allows notice of community service leave to be given at a time after the leave has started.

·  Clause 22.1 does not provide for additional gazetted holidays. This is provided in s115(1)(b) of the Act. Clause 22.1.2 also states that employees may be required to work on public holidays. Section 114 of the Act provides that employees are entitled to absence on public holidays.

·  Clause 24.6.3 provides three weeks’ redundancy pay per year of service. For employees with between 1 and 2 years of service, this is below the entitlement in s119(2) of the Act. Clause 24.8 states that there will be no entitlement to redundancy pay where employee accepts offer of alternative employment with the company. Per s120(2), the employer must make application to vary the amount of payment.

1. Clause 6.4 of the Agreement acts as an effective NES precedence clause. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The Applicant has submitted an undertaking in the required form dated 25 September 2023. The undertaking deals with the following topics:

·  Clause 6.5 is intended to incorporate the Award.

1. A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking.

1. 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.

1. The Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy 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 this organisation.

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2027.

COMMISSIONER

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