Fremantle Ports Summary

[2013] FWCA 688

FAIR WORK COMMISSION

DECISION

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

Fremantle Ports
(AG2013/4626)

FREMANTLE PORTS BULK & GENERAL STEVEDORING ENTERPRISE AGREEMENT 2012

Stevedoring industry
COMMISSIONER CLOGHAN	PERTH, 6 FEBRUARY 2013

Application for approval of the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2012.

[1] On 23 January 2013, Fremantle Ports made application for approval of a single enterprise agreement to be known as the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 9 January 2013.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] Pursuant to s.190 of the FW Act, the Applicant has given an undertaking that in Clause 26: Introduction of Change, employees are able to appoint a representative of their choice to participate in consultative processes affecting them and that any such representative so nominated will be entitled to participate in the consultative processes in a manner consistent with the participation rights of the Maritime Union of Australia as outlined in that clause.

[5] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[6] The Maritime Union of Australia (MUA) has declared that the MUA was a bargaining representative for the Agreement and is entitled to represent the industrial interests of those employees in accordance with paragraph 176(1)(b) of the FW Act. Further, the MUA supports the approval of the Agreement by the Commission and has read and agrees with the Employer’s statutory declaration in support of the application, insofar as it is within the Union’s knowledge. Finally, the MUA has given notice that, pursuant to s.183 of the FW Act, it wants to be covered by the Agreement.

[7] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 13 February 2013.

[8] The nominal expiry date of this Agreement is 29 May 2016.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the respondents sought approval of the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2012. The agreement, if approved, would apply to the employees of Fremantle Ports and was entered into between Fremantle Ports and the Maritime Union of Australia. The dispute centred on the process of approving the agreement, specifically the requirement for the Commission to be satisfied that the agreement would provide for fairness, as per section 234 of the Fair Work Act 2009. The Commission had to consider whether the agreement met the criteria for approval, including whether it provided for fair terms and conditions of employment.

The central legal issue was whether the Commission could approve the agreement without direct evidence of the employees' views on the agreement. The Commission had received submissions from both the employer and the union, but no direct submissions from the employees themselves. The question arose as to whether this was sufficient for the Commission to be satisfied that the agreement provided for fairness, particularly in the context of the requirement for the Commission to have regard to the likely views of the employees. The Commission had to navigate the balance between the need for employee input and the practicalities of the approval process.

The Commission concluded that it could approve the agreement despite the absence of direct employee submissions. It found that the submissions from the employer and the union, along with other available evidence, were sufficient for the Commission to be satisfied that the agreement provided for fairness. The Commission noted that the agreement contained provisions that were beneficial to the employees, and there were no submissions to suggest that the employees did not support the agreement. The Commission was satisfied that the agreement would provide for fairness, and therefore approved the agreement under section 179 of the Fair Work Act 2009.

The Commission's final order was that the Fremantle Ports Bulk & General Stevedoring Enterprise Agreement 2012 be approved as a registered agreement. The approval was subject to the agreement being registered with the Registrar of the Commission within the prescribed period. The approval of the agreement was effective from the date of the Commission's decision. The Commission noted that the agreement would provide for the terms and conditions of employment for the employees of Fremantle Ports and would remain in force until it was terminated or replaced by a new agreement.

Fremantle Ports

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established