Flinders Ports Pty Ltd; Flinders Port Management Services Pty Ltd

[2019] FWCA 1512

[2019] FWCA 1512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 – Application for approval of a single-enterprise agreement

Flinders Ports Pty Ltd; Flinders Port Management Services Pty Ltd
(AG2019/229)

FLINDERS PORTS AND FLINDERS PORT MANAGEMENT SERVICES ENTERPRISE AGREEMENT, 2018-2022

Maritime industry
COMMISSIONER HAMPTON	ADELAIDE, 12 MARCH 2019

Application for approval of the Flinders Ports and Flinders Port Management Services Enterprise Agreement, 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Flinders Ports and Flinders Port Management Services Enterprise Agreement, 2018-2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Flinders Ports Pty Ltd and Flinders Port Management Services Pty Ltd (collectively Flinders Ports). The Agreement is a single-enterprise agreement as the two employers collectively conduct a common enterprise and are single interest employers. 1

[2] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Maritime Officers’ Union (AMOU) are bargaining representatives and have supported the approval of the Agreement.

[3] To the extent that the application and accompanying supporting document did not fully accord with the Fair Work Rules 2013, I have waived compliance under Rule 6.

[4] On 1 March 2019, the matter was assigned to the Commission as presently constituted to deal with the application. The matter was listed for a hearing by phone on 7 March 2019 and the parties were put on notice about a number of issues that appeared to arise from the application. During the course of that conference a number of points of clarification were made and certain undertakings were foreshadowed which have now been provided to the Commission.

[5] I deal firstly with the pre-approval agreement requirements. Without discussing all of those requirements in this decision I turn in particular to whether the enterprise agreement has been genuinely agreed to by employees as required by s.188 of the Act. This arises from the form of Notice of Employee Representation Rights (NERR) issued by each of the employers. All other pre-approval steps have been followed by the employer.

[6] Whilst all other aspects of the two NERRs strictly complied with the prescribed form, 2 each described the intended coverage of the agreement as “employees that work in certain classifications defined in the proposed agreement”. In many, if not most cases, the lack of clarity about the intended coverage in the NERR could raise issues as to whether the NERR complied with the prescribed requirements and formed the proper foundation for a genuine agreement as required by the Act. The NERR is required to set out the “proposed coverage” and the purpose the NERR in that regard is important.

[7] In this case the material before the Commission confirms that:

•  The NERRs were issued to all relevant employees at the appropriate time required by the Act;

•  The scope of the intended agreement was understood by the employees and the bargaining representatives as being in accordance with the existing enterprise agreement and that scope was well understood in the workplace; and

•  The intended scope was reflected in the various draft agreements circulated amongst the parties and confirmed in the Agreement approved by the employees and provided to the Commission.

[8] In the circumstances, I am satisfied that the two NERRs complied with the prescribed requirements and that given the context, the notices and the accompanying information and subsequent processes have led to the Agreement being genuinely agreed within the meaning of the Act. 3 I note that if I had formed a different view about the form of the NERRs, I would have applied s.188(2) of the Act as introduced by the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018. That is, any error in the form would have been a minor procedural or technical error and that the employees covered by the Agreement were not likely to have been disadvantaged by the error, given the prevailing circumstances.4

[9] During the hearing of this matter, Flinders Ports and the CFMMEU addressed a number of issues that had been raised by the Commission, which included:

•  That although the personal leave provisions were expressed in hours, not in days as set out in the National Employment Standards (NES), and the accrual was stated to be monthly, clause 7.1.1, 7.1.2 and 7.1.3 of the Agreement expressly confirm that the provisions will not be read so as to provide any employee with an entitlement less favourable than that provided by the NES, that no NES entitlements are curtailed, and that certain additional leave entitlements are established;

•  The notice of termination of employment provisions of the Agreement may not fully accord with s.123(1) of the Act;

•  Despite different provisions for some casual and part-time employees when compared with the relevant modern awards that would otherwise apply, the rates of pay and the additional benefits were sufficient to ensure that all employees were better of overall by the approval of the Agreement; and

•  The rates of pay, including for trainees, were more beneficial, and in most cases, significantly higher, than the relevant modern award minimum rates.

[10] Where appropriate, some of these matters as they relate to ss.186 and 187 of the Act were reflected in formal undertakings provided to the Commission by Flinders Ports. The undertakings are supported by the CFMMEU and the AMOU and are appended to the Agreement. These undertakings are responsive to the concerns raised by the Commission and in particular, when considered in the context of the terms of the instrument itself, the undertakings confirm the intended operation of the Agreement. This has also confirmed my satisfaction that the Agreement meets the Better Off Overall Test set out in s.193 of the Act and that the instrument will operate in conformity with the NES.

[11] The undertakings do not result in substantial changes to the Agreement and no employee will be disadvantaged or suffer financial detriment. As a result, I have accepted the undertakings pursuant to s.190 of the Act, and with the approval of the instrument, the undertakings are taken to become terms of the Agreement.

[12] The consultation clause of the Agreement does not expressly contain all of the features required by ss.205(1) and (1A) of the Act. As a result of s.205(2), the model consultation term is taken be part of the Agreement.

[13] The Agreement otherwise contains the relevant mandatory content and meets the form requirements of the Act; and I am satisfied that it does not contain unlawful, discriminatory or objectionable terms.

[14] Having regard to the terms of the Agreement, the additional information now provided to the Commission, and in light of the agreed undertakings, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 March 2019. The nominal expiry date of the Agreement is 31 March 2022.

COMMISSIONER

 1   Section 172(2) and (5).

 2   Sections 173 and 174 of the Act and Regulation 2.05.

 3   Sections 181 and 188 of the Act.

 4   See Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

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