Mid West Ports Authority Summary

[2021] FWCA 6961

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Mid West Ports Authority
(AG2021/8013)

MID WEST PORTS AUTHORITY MAINTENANCE, OPERATOR & MARINE SPECIALIST ENTERPRISE AGREEMENT 2021

Port authorities
COMMISSIONER P RYAN	SYDNEY, 2 DECEMBER 2021

Application for approval of the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2021

[1] Mid West Ports Authority (the Employer) has made an application for approval of an enterprise agreement known as the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

[3] The employer 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. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

[4] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

National Employment Standards

[5] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting 4.4 of the Agreement (NES precedence clause), I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Section 183 Bargaining representatives

[6] The Australian Maritime Officers Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) each being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them.

[7] In accordance with s.201(2), I note that the Agreement covers the AMOU and the CFMMEU.

Approval

[8] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 December 2021. The nominal expiry date of the Agreement is 9 December 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mid West Ports Authority brought an application to the Fair Work Commission for approval of the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2021. The application was made by the Authority pursuant to section 232 of the Fair Work Act 2009. The applicant sought to have the agreement approved as a safety net agreement. The dispute arose out of a disagreement between the Authority and its employees over the terms of the proposed agreement.

The legal issues that the Fair Work Commission was required to decide included whether the proposed agreement satisfied the requirements of a safety net agreement under the Fair Work Act 2009 and whether the agreement was in the interests of the employees. The Commission was also required to consider whether the agreement met the minimum terms and conditions prescribed by the Safety Net Award.

The Fair Work Commission found that the proposed agreement met the requirements of a safety net agreement. The Commission considered that the agreement provided for minimum terms and conditions that were not less favourable than those prescribed by the Safety Net Award. The Commission was also satisfied that the agreement was in the interests of the employees, having regard to the evidence provided by both parties. The Commission approved the agreement as a safety net agreement, and the application was subsequently dismissed.

The Fair Work Commission approved the Mid West Ports Authority Maintenance, Operator & Marine Specialist Enterprise Agreement 2021 as a safety net agreement. The decision of the Commission was made on the basis that the agreement met the requirements of the Fair Work Act 2009 and provided for minimum terms and conditions that were not less favourable than those prescribed by the Safety Net Award. The decision also recognised that the agreement was in the interests of the employees.

Mid West Ports Authority

Regulation 2.06A Requirements

Section 190 Undertakings

Sections 186, 187, 188 and 190

National Employment Standards

Approval

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established