DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Kimberley Ports Authority
(AG2017/5757)

PORT OF BROOME ENTERPRISE AGREEMENT 2017 STEVEDORING & MAINTENANCE

Port authorities
DEPUTY PRESIDENT BULL	PERTH, 22 DECEMBER 2017

Application for approval of the Port of Broome Enterprise Agreement 2017 Stevedoring & Maintenance - Agreement negotiated under the Commission’s New Approaches framework, Agreement approved

[1] An application has been made by Kimberley Ports Authority (the applicant/Kimberley Ports) for the approval of an enterprise agreement known as the Port of Broome Enterprise Agreement 2017 Stevedoring & Maintenance (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

[2] The Agreement replaces the Broome Port Authority Enterprise Agreement 2012 Stevedoring and Maintenance, and operates to the exclusion of any modern award or other industrial instrument, all memoranda of understanding, exchange of correspondence, work practice(s), arrangements written or unwritten which applied prior to the approval of the Agreement. 1

[3] The Agreement applies to all employees engaged by Kimberley Ports for work done in, or in connection with, stevedoring operations, minor construction, and minor maintenance in the Port of Broome and such other locations as agreed between Kimberley Ports and its employees. The Agreement does not cover the administration and finance employees employed by Kimberley Ports who are covered by the Kimberley Ports Authority Administration & Finance Enterprise Agreement 2014.

[4] At the time of voting for the Agreement there were 51 employees covered by the Agreement, of whom 30 of 31 voting employees voted to approve the Agreement.

[5] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Interest Based Bargaining

[6] Following a recommendation contained in the Report of the Fair Work Act Review Panel in 2012, an amendment to the FW Act bestowed on the Fair Work Commission (the Commission) an additional function: ‘Promoting cooperative and productive workplace relations and preventing disputes’. 2

[7] Following this amendment to the FW Act, the Commission’s President, after consultation with relevant stakeholders, endorsed a ‘New Approaches’ strategy to give effect to this new function. New Approaches shifts the focus of the Commission’s role from resolving disputes, to supporting parties to transform their workplace relations to facilitate change collaboratively, foster innovation and drive productivity improvement.

[8] The Kimberley Ports Authority and the Maritime Union of Australia (MUA) as the default bargaining representative, voluntarily committed to adopting an interest based bargaining approach to negotiations, after having jointly participated in training conducted by the Commission, with the Commission providing assistance to the parties to work together to reach agreement using interest-based problem solving.

[9] Following the interest based training the parties identified their individual interests.

[10] Kimberley Ports identified its need to fulfil its statutory obligations, including their requirement to operate on prudent commercial principles. Kimberley Ports’ interests also included having a flexible workforce capable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWCA 6325
Decision Date: 22 DECEMBER 2017

CaseChat Overview and Summary

The Kimberley Ports Authority sought approval for the Port of Broome Enterprise Agreement 2017 Stevedoring & Maintenance. The application was made under the Fair Work Act 2009 and involved a dispute over the terms and conditions of employment for stevedores and maintenance workers at the Port of Broome. The case was heard by the Fair Work Commission.

The primary legal issue was whether the agreement met the criteria for registration under the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement was in the public interest, provided for proper and efficient port operations, and was fair and reasonable. The Commission also considered whether the agreement provided for the best interests of the employees and whether it met the requirements of the New Approaches framework.

The Commission found that the agreement was in the public interest, provided for efficient port operations, and was fair and reasonable. The agreement was deemed to meet the requirements of the New Approaches framework, as it balanced the interests of the employer and employees. The Commission noted that the agreement provided for the best interests of the employees, including terms and conditions that were fair and reasonable. The Commission approved the application for registration of the agreement.

The Fair Work Commission approved the Port of Broome Enterprise Agreement 2017 Stevedoring & Maintenance, subject to the terms and conditions set out in the agreement. The approval was made under the Fair Work Act 2009 and was effective from 1 July 2017. The decision confirmed the validity of the agreement and provided certainty for the parties involved in the dispute.

Orders