DECISION

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

Mid West Ports Authority
(AG2018/6851)

MID WEST PORTS AUTHORITY MAINTENANCE OPERATOR & MARINE SPECIALIST ENTERPRISE AGREEMENT 2018

Port authorities
DEPUTY PRESIDENT BINET	PERTH, 13 MARCH 2019

Application for approval of the Mid-West Ports Authority - Maintenance, Operator and Marine Specialist Enterprise Agreement 2018..

[1] An application has been made by Mid West Ports Authorities (Mid West Ports) for approval of an enterprise agreement known as the Mid West Ports Authority Maintenance, Operator and Marine Specialist Enterprise Agreement 2018 (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] Following concerns about the scope of the previous agreement the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Maritime Officers Union (AMOU) and Mid West Ports met on numerous occasions in an effort to conclude an agreement using traditional positional negotiating techniques. On 16 March 2018 the negotiating parties decided to take a different approach and made a joint application to the Fair Work Commission (FWC) seeking its assistance in negotiating an agreement using the powers under s.576(2)(aa) of the FW Act.

[3] Pursuant to this power, I provided training to the negotiating parties on interest based bargaining techniques and then facilitated several negotiation sessions between the parties utilising these techniques. Subsequently the parties finalised negotiations directly between themselves.

[4] The workforce subsequently endorsed the Agreement at a ballot conducted in November 2018.

[5] I am hopeful that the spirit in which this agreement was reached, consistent with the goal of the New Approaches initiative, leads to more efficient resolution of workplace disputes and consequently a reduction in the need for matters to be referred to the FWC during the life of the Agreement.

[6] Mid West Ports have provided written undertakings to avoid unintended interpretations of the Agreement occuring in the future. 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.

[7] 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.

[8] The CFMMEU and the AMOU being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they each want the Agreement to cover their respective organisations. In accordance with s.201(2), I note that the Agreement covers the CFMMEU and the AMOU.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 March 2019. The nominal expiry date of the Agreement is 8 December 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

The Mid West Ports Authority sought approval for the Maintenance, Operator and Marine Specialist Enterprise Agreement 2018 from the Fair Work Commission. The authority sought this approval to regulate the employment terms and conditions for its employees. The application was lodged before the Fair Work Commission, which has the jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The legal issues before the court were whether the agreement complied with the procedural and substantive requirements set forth in the Fair Work Act, including provisions related to employee representation, bargaining, and the terms of the agreement itself.

The Fair Work Commission examined whether the agreement had been negotiated in good faith, whether it included all necessary provisions, and whether it met the criteria for approval as stipulated in the Fair Work Act. The court considered the evidence provided by both the Mid West Ports Authority and the relevant trade union, assessing the procedural fairness of the negotiation process and the content of the agreement. The Commission was also required to ensure that the agreement did not adversely affect employees' rights and entitlements under the National Employment Standards and other relevant awards and agreements.

The Fair Work Commission found that the Maintenance, Operator and Marine Specialist Enterprise Agreement 2018 had been negotiated in good faith and met all the procedural requirements for approval. The agreement included all necessary provisions and did not contain terms that would unjustifiably harm the employees. The Commission concluded that the agreement was fair and appropriate for the employees it covered, and thus approved it under the Fair Work Act. The court's decision was based on the evidence that the agreement was a product of genuine bargaining and that it provided adequate protections for the employees.

Mid West Ports Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established