Flinders Logistics Pty Ltd

[2024] FWCA 3430

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Flinders Logistics Pty Ltd

(AG2024/3309)

Stevedoring industry
COMMISSIONER THORNTON	ADELAIDE, 2 OCTOBER 2024

Application for approval of the Flinders Logistics Port Pirie Operations Agreement 2024

An application has been made for approval of an enterprise agreement known as the Flinders Logistics Port Pirie Operations Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Flinders Logistics Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The copy of the Agreement filed with the application contained a signature page that did not meet the requirements under s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was later provided upon request by the Commission that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to amend the Agreement pursuant to s.586 of the Act to allow for the amended signature page to be inserted.

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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I note that clauses 33.2.3, 36.1, 36.9 and 38 may be inconsistent with the National Employment Standards (NES). However, the Applicant has provided an undertaking that should there be any inconsistency with the NES, and where the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result, 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 Agreement does not contain a comprehensive delegates’ rights term, as required by s.205A(1) of the Act. Under s.205A(2), the workplace delegates’ rights term in Clause 30A of the Stevedoring Industry Award 2020 is taken to be a term of the Agreement.

The Construction, Forestry and Maritime Employees Union (CFMEU) 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 CFMEU.

The Agreement is approved and in accordance with s.54 of the Act will operate from 9 October 2024. The Agreement contains a nominal expiry date of 30 September 2024. The Commission observes that this is the expressly intended nominal expiry date that employees have approved in a vote. I am satisfied that this meets the requirements of s.186(5) of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

Flinders Logistics Pty Ltd applied for the approval of the Flinders Logistics Port Pirie Operations Agreement 2024 under section 185 of the Fair Work Act 2009. The application was reviewed by the Fair Work Commission, which was required to determine whether the agreement met all the relevant requirements of the Act and to approve it if it did. The agreement was intended to be a single enterprise agreement. A signature page was initially filed with the application, but it did not meet the requirements of the Act and the Fair Work Regulations 2009. An amended signature page was later provided and accepted by the Commission.

The Commission determined that all the requirements for approval had been met. These included that the agreement contained written undertakings which would not cause financial detriment to employees or result in substantial changes to the agreement. The Commission was satisfied that the agreement met the requirements of sections 186, 187, 188 and 190 of the Act. The Commission also determined that the agreement would prevail over the National Employment Standards where there was an inconsistency, provided that the National Employment Standards provided a greater benefit. The agreement did not contain a comprehensive delegates’ rights term, but this was not necessary because the workplace delegates’ rights term in Clause 30A of the Stevedoring Industry Award 2020 was taken to be a term of the agreement. The Construction, Forestry and Maritime Employees Union lodged a statutory declaration that it wanted the agreement to cover it, and the Commission noted that the agreement did cover it.

The Commission approved the Flinders Logistics Port Pirie Operations Agreement 2024 and determined that it would operate from 9 October 2024. The agreement contained a nominal expiry date of 30 September 2024, which the Commission was satisfied met the requirements of section 186(5) of the Act.

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