DECISION

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

Newcastle Port Corporation T/A Port Authority of New South Wales
(AG2015/5187)

PORT AUTHORITY OF NEW SOUTH WALES - PORT KEMBLA ENTERPRISE AGREEMENT 2014 - 2017

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 27 OCTOBER 2015

Application for approval of the Port Authority of New South Wales - Port Kembla Enterprise Agreement 2014 - 2017.

[1] An application has been made for approval of an enterprise agreement known as the Port Authority of New South Wales – Port Kembla Enterprise Agreement 2014 – 2017 (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 trading as Port Authority of New South Wales (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 6 October 2015. The application included a Statutory Declaration of Brock Kalanj made on behalf of the Employer and dated 25 September 2015 (the Declaration). The Declaration incorrectly stated that the Agreement was made on 25 August 2015. This date was subsequently corrected to be 22 September 2015. Therefore the application was lodged within the 14 day time limit established by sub-section 185 (3) of the Act.

[3] The Fair Work Commission (the Commission) identified an issue relating to the contents of a particular term contained in the Agreement, which required clarification. The Employer was advised of this concern and invited to provide a response.

[4] The Commission has received correspondence dated 23 October 2015, from the Employer which included further material in support of the application together with an Undertaking made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertaking).

[5] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration, the further material in support of the application and the Undertaking. As a result of the consideration of these materials I am satisfied that, inter alia, the procedural requirements of Part 2-4 of the Act have been met.
[6] The application for approval was listed for Hearing in Chambers before the Commission on 27 October 2015. I note that the file has included a Statutory Declaration of Meghann Papa made on behalf of the Australian Maritime Officers’ Union (the AMOU), as an employee organisation in relation to the application. I further note that the file has also included a Statutory Declaration of Michael Burns made on behalf of the Maritime Union of Australia (the MUA), as an employee organisation in relation to the application.

[7] I note that the Agreement contains a flexibility term at clause 39 and a consultation term at clause 34.

[8] I am prepared to accept the Undertaking. As provided by s.191 of the Act, the Undertaking is taken to be a term of the Agreement. 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.

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

[10] The Agreement as varied by the Undertaking is approved. In accordance with sub-section 54 (1) of the Act it will operate from 2 November 2015. The nominal expiry date of the Agreement as specified in clauses 1.3 and 4.1 of the Agreement, is 30 June 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application for the approval of the Port Authority of New South Wales - Port Kembla Enterprise Agreement 2014 - 2017. The Port Authority of New South Wales, trading as the Newcastle Port Corporation, sought to have the enterprise agreement approved under the Fair Work Act 2009. The dispute centred on whether the agreement complied with the statutory requirements for approval and whether it was in the best interests of the employees.

The legal issues before the commission included the determination of whether the agreement contained appropriate provisions for the classification and remuneration of employees, compliance with minimum standards set by the Fair Work Act, and whether the agreement was negotiated in good faith. Additionally, the commission considered whether the agreement provided for adequate protections and benefits for the employees, as well as whether it aligned with the broader objectives of the Act, including promoting high levels of employment and economic prosperity.

The commission carefully examined the provisions of the agreement, taking into account submissions from both the employer and the employees' representatives. It assessed whether the agreement met the criteria for approval, including whether it contained no terms that were less favourable than the applicable modern awards or the Fair Work Act. The commission found that the agreement was generally in compliance with the statutory requirements and that it was negotiated in good faith. It concluded that the agreement was in the best interests of the employees and approved it accordingly.

The final orders of the commission were to approve the Port Authority of New South Wales - Port Kembla Enterprise Agreement 2014 - 2017, subject to the conditions and modifications outlined in the decision. This decision provided clarity and certainty for both the employer and the employees, ensuring that the agreement met the legal standards for approval and protected the interests of the workforce.

Newcastle Port Corporation T/A Port Authority of New South Wales

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established