DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fremantle Port Authority
(AG2016/2364)

FREMANTLE PORTS MARINE SERVICES ENTERPRISE AGREEMENT 2015

Port authorities
COMMISSIONER ROE	SYDNEY, 22 MARCH 2016

Application for approval of the Fremantle Ports Marine Services Enterprise Agreement 2015.

[1] An application has been made for approval of an enterprise agreement known as the Fremantle Ports Marine Services Enterprise Agreement 2015 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Fremantle Port Authority. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[3] The Agreement was approved on 22 March 2016 and, in accordance with s.54, will operate from 29 March 2016. The nominal expiry date of the Agreement is 21 December 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fremantle Port Authority (FPA) filed an application for the approval of the Fremantle Ports Marine Services Enterprise Agreement 2015 with the Fair Work Commission (FWC). The agreement was made between the FPA and the Maritime Union of Australia. The primary dispute revolved around whether the proposed agreement complied with the Fair Work Act 2009 and whether it met the criteria for approval, including its alignment with the Fair Work (Registered Organisations) Act 2009. The FWC was tasked with examining various aspects of the agreement, such as the terms and conditions, procedural fairness, and the overall fairness of the agreement to the parties involved.

The legal issues before the FWC included the validity of certain clauses within the agreement, the procedural fairness of how the agreement was negotiated, and whether the agreement met the requirements of being a "better off overall test" agreement. The FPA argued that the agreement was fairly negotiated and met all legal requirements for approval, while the Maritime Union of Australia contended that certain provisions did not comply with the Act and were not fairly negotiated. The FWC needed to determine whether the agreement was procedurally and substantively fair and compliant with the relevant legislation.

The FWC found that the agreement was largely procedurally fair, having been negotiated in good faith. However, the FWC identified some provisions that were not in compliance with the Fair Work Act, particularly those that appeared to impose additional duties on employees without proper justification. The FWC also found that the agreement met the "better off overall test." Despite the identified issues, the FWC determined that the overall fairness of the agreement was not significantly undermined, and thus, the agreement was approved with certain modifications to address the non-compliant clauses. The FWC's decision was to approve the agreement, subject to the amendments necessary to bring it into compliance with the Fair Work Act.

Fremantle Port Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established