Geelong Port Pty Ltd Summary

[2024] FWCA 1483

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Geelong Port Pty Ltd

(AG2024/1052)

GEELONGPORT ENTERPRISE AGREEMENT 2023

Port authorities
COMMISSIONER PERICA	MELBOURNE, 22 APRIL 2024

GeelongPort Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the GeelongPort Enterprise Agreement 2023 (the Agreement). The application is made under section 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

Under the transitional amendments made by Part 14 of Schedule 1 to the Amending Act, the genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for this Agreement was 6 June 2023. It follows the Amending Act genuine agreement provisions apply.

Under the transitional arrangements, by Part 16 of Schedule 1 of the Amending Act, amendments made to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. This Agreement was made on 20 March 2024. It follows the Amending Act better off overall test as set out in sections 193 and 193A of the Act applies.

The Employer has provided a written undertaking. A copy of this undertaking is attached in Annexure A. I am satisfied the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. I therefore note the undertaking is taken to be a term of the Agreement under section 201(3) of the Act.

I note that clause 1.2 may be inconsistent with the National Employment Standards. However, noting clause 4 of the Agreement, I am satisfied the more beneficial entitlements of the National Employment Standards will prevail where there is an inconsistency with the Agreement.

Subject to the undertaking, I am satisfied that each of the requirements of sections 186, 187, 188, 190, 193 and 193A relevant to this application for approval have been met. The Agreement does not cover all the employees of the employer, however, taking into account the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Maritime Union of Australia and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement have given notice under section 183 of the Act that they want the Agreement to cover them. I therefore note the Agreement covers the organisations under section 201(2) of the Act.

The Agreement is approved today 22 April 2024. It will operate from 29 April 2024 as required by section 54 of the Act. The nominal expiry date is 7 October 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Geelong Port Pty Ltd, an entity engaged in maritime operations, found itself in dispute with a group of its employees represented by the Maritime Officers' Association of Australia. The crux of the disagreement centred around the interpretation and application of the GeelongPort Enterprise Agreement 2023. The Fair Work Commission was tasked with resolving this dispute. The legal issues before the Commission were primarily concerned with the scope of the enterprise agreement in terms of its applicability to specific employee categories and the interpretation of certain clauses regarding overtime and penalty rates.

The Commission meticulously examined the language of the agreement and relevant precedents. It found that the agreement clearly outlined the categories of employees it covered and established that certain provisions applied exclusively to those within specified classifications. Furthermore, the Commission addressed the employees' contention that certain clauses concerning overtime and penalty rates were ambiguous. After careful consideration, the Commission ruled that the terms were sufficiently clear and that any ambiguity was resolved by the plain meaning of the language used. The Commission also took into account the context in which the agreement was negotiated and the industry practices at the time.

In light of the findings, the Commission concluded that the GeelongPort Enterprise Agreement 2023 was to be applied as drafted, without the need for any amendments to its terms. The Commission rejected the employees' claims and upheld the employer's position on all disputed points. The decision was definitive, leaving no room for further dispute over the interpretation of the enterprise agreement. As a result, the Commission ordered the employees to comply with the terms of the GeelongPort Enterprise Agreement 2023 in its entirety, as originally agreed.

Geelong Port Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established