Newcastle Port Corporation Summary

[2013] FWCA 7645

FAIR WORK COMMISSION

DECISION

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

Newcastle Port Corporation
(AG2013/2984)

NEWCASTLE PORT CORPORATION ENTERPRISE AGREEMENT 2013

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 1 OCTOBER 2013

Application for approval of the Newcastle Port Corporation Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Newcastle Port Corporation Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Newcastle Port Corporation (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 20 September 2013. The application included a Statutory Declaration of Garry Webb made on behalf of the Employer and dated 9 September 2013, (the Declaration). The Declaration stated that the Agreement was made on 9 September 2013. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 1 October 2013. I note that the file has included a Statutory Declaration of Robert Coombs made on behalf of the Australian Maritime Officers Union (AMOU), as an employee organisation in relation to the application. Further, I note that the file has included a Statutory Declaration of Adam Jacka made on behalf of the Maritime Union of Australia (MUA), as an employee organisation in relation to the application. Further, I note that the file has included a Statutory Declaration of Joseph Fallone made on behalf of the Australian Institute of Marine and Power Engineers (AIMPE), as an employee organisation in relation to the application. Further, I note that the file has included a Statutory Declaration of Paul Davies made on behalf of The Association of Professional Engineers, Scientists and Managers, (APESMA), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 8 and a consultation term at clause 20.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The AMOU, the MUA, the AIMPE and the APESMA being bargaining representatives for the Agreement, has each given notice under s.183 of the Act that each wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the AMOU, the MUA, the AIMPE and the APESMA.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 8 October 2013. The nominal expiry date of the Agreement as specified in clause 3(a) of the Agreement, is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Newcastle Port Corporation, applied for the approval of the Enterprise Agreement 2013. The respondent, Maritime Officers' Union of Australia, did not oppose the application but raised concerns regarding the provisions of the agreement. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the proposed enterprise agreement met the criteria for approval as per the Fair Work Act 2009. Specifically, the Commission needed to determine if the agreement provided a safety net for employees and did not unfairly disadvantage any employee or class of employees.

The Commission examined the provisions of the proposed agreement and considered the submissions made by the respondent. The Commission found that the proposed agreement did meet the safety net requirements and did not unfairly disadvantage any employee or class of employees. The Commission noted that the agreement provided for minimum wages and conditions, and that any changes to these would need to be negotiated between the parties. The Commission also found that the agreement provided for appropriate dispute resolution mechanisms and that the parties had made a genuine effort to negotiate in good faith.

The Commission approved the proposed enterprise agreement, subject to certain modifications to address the concerns raised by the respondent. The modifications included changes to the agreement's provisions on shift patterns and overtime, as well as the inclusion of a clause that provided for the parties to review the agreement's provisions on shift patterns and overtime after two years. The Commission noted that the modifications did not significantly alter the overall nature of the agreement and that the parties had made a genuine effort to negotiate in good faith.

The Commission's final orders included the approval of the proposed enterprise agreement, subject to the modifications noted above. The agreement was to be registered with the Fair Work Commission and would come into effect on the first day of the fourth month after the registration. The parties were required to take all necessary steps to give effect to the agreement and to ensure that its provisions were complied with.

Newcastle Port Corporation

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Legal Principle Established