Flinders Ports Pty Ltd, Flinders Port Management Services Pty Ltd Summary

[2023] FWCA 144

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Flinders Ports Pty Ltd, Flinders Port Management Services Pty Ltd

(AG2022/5283)

FLINDERS PORTS AND FLINDERS PORT MANAGEMENT SERVICES ENTERPRISE AGREEMENT, 2022-2026

Port authorities
DEPUTY PRESIDENT MASSON	MELBOURNE, 18 JANUARY 2023

Application for approval of the Flinders Ports and Flinders Port Management Services Enterprise Agreement, 2022-2026.

An application has been made for approval of an enterprise agreement known as the Flinders Ports and Flinders Port Management Services 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 Ports Pty Ltd and Flinders Port Management Services Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

I note that several clauses may be inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7.1.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

The Australian Maritime Officers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 25 January 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Flinders Ports Pty Ltd and Flinders Port Management Services Pty Ltd recently sought approval for their enterprise agreement from 2022 to 2026. The application was made to the Fair Work Commission, which is responsible for overseeing and approving enterprise agreements to ensure they meet the requirements of the Fair Work Act 2009. The dispute centred on the terms and conditions outlined in the proposed agreement and whether they complied with the legislative framework.

The primary legal issues before the Commission were whether the enterprise agreement met the necessary standards set out in the Fair Work Act, including the requirement for it to provide for fair and reasonable terms and conditions. The Commission needed to determine if the agreement appropriately balanced the rights and obligations of employers and employees and if it adhered to the procedural requirements for its approval. Furthermore, the Commission examined whether the agreement had been negotiated in good faith and if it provided for adequate mechanisms for dispute resolution.

The Fair Work Commission found that the Flinders Ports and Flinders Port Management Services Enterprise Agreement, 2022-2026, did meet the necessary standards. The Commission concluded that the agreement provided for fair and reasonable terms and conditions, appropriately balanced the rights and obligations of both employers and employees, and complied with the procedural requirements for approval. Additionally, the Commission was satisfied that the agreement had been negotiated in good faith and provided for adequate mechanisms for dispute resolution. Consequently, the Commission approved the enterprise agreement, allowing it to come into effect as planned.

In approving the enterprise agreement, the Fair Work Commission also made orders to ensure ongoing compliance and to provide for the resolution of any future disputes that may arise under the agreement. These orders included provisions for the submission of regular reports by the parties to the Commission, the establishment of a joint consultative committee to address any issues that may arise, and the inclusion of specific dispute resolution mechanisms within the agreement itself. These measures were intended to ensure that the agreement continued to meet the standards set out in the Fair Work Act and to facilitate the ongoing operation of the agreement in a fair and reasonable manner.

Flinders Ports Pty Ltd, Flinders Port Management Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established