Mid West Ports Authority

[2025] FWCA 2974

[2025] FWCA 2974

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Mid West Ports Authority

(AG2025/2511)

MID WEST PORTS AUTHORITY MAINTENANCE, OPERATOR & MARINE SPECIALIST ENTERPRISE AGREEMENT 2024

Port authorities
COMMISSIONER LIM	PERTH, 3 SEPTEMBER 2025

Application for approval of the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2024.

1. Mid West Ports Authority (the Applicant) has made an application for the approval of an enterprise agreement known as the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 33 of the Agreement provides that full-time employees will be entitled to annual leave for each year of continuous service in accordance with the classification schedule and part-time employees shall receive pro-rata leave based on that same classification schedule. The classification schedule provides for 21 days of annual leave for day maintenance workers; and 25 shifts of annual leave for shift maintenance workers, port operators and pilot boat skippers. As such the annual leave provisions appear to be inconsistent with s 87 of the act which provides for annual leave in weeks not in days or shifts.

(b)Further to the above, the manner in which annual leave accrues under the Agreement is inconsistent with s 87(2) of the Act which provides that annual leave accrues progressively and accumulates from year to year.

(c)Clause 34 of the Agreement provides that employees shall be entitled to personal/carers leave in accordance with the classification schedule, however the manner in which personal/carers leave accrues under schedule 1 of the Agreement is inconsistent with s 96(2) of the Act which provides that personal/carers leave accrues progressively and accumulates from year to year.

(d)Clause 39.2 of the Agreement provides that employees may terminate their employment by giving 4 weeks’ notice unless they are in their probationary period or are a casual employee. The clause goes on to include that where an employee provides less than 2 weeks’ notice the company may withhold from wages due to the employee an amount equal to 1 week’s wage at the ordinary rate of pay. It is noted that this clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act.

1. However, I am satisfied that under clause 4.4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Maritime Union of Australia, a Division of the Construction, Forestry and Maritime Employees’ Union (CFMEU), and the Australian Maritime Officers Union (AMOU) (together, the organisations), 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), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 3 September 2025 and, in accordance with s 54, will operate from 10 September 2025. The nominal expiry date of the Agreement is 3 September 2028.

COMMISSIONER

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Annexure A