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

[2022] FWCA 2

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

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

(AG2021/9205)

Port Authority of New South Wales Sydney Enterprise Agreement 2017-2021

Port authorities
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 10 JANUARY 2022

Application for termination of the Port Authority of New South Wales Sydney Enterprise Agreement 2017-2021

By an application dated 17 December 2021, Newcastle Port Corporation T/A Port Authority of New South Wales (Applicant) applied to the Fair Work Commission (Commission) to terminate the Port Authority of New South Wales Sydney Enterprise Agreement 2017-2021 (Agreement) under s 222 of the Fair Work Act 2009 (Cth) (Act). The Agreement had a nominal expiry date of 30 June 2021.

The application is made in circumstances where a new enterprise agreement was made and commenced operation on 16 December 2021,[1] but the new agreement has different coverage to the Agreement.

Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

The application was supported by a Statutory Declaration made by Mr Glen Davis, Senior Business Partner People & Culture of the Applicant, on 21 December 2021. Mr Davis declared, amongst other things, that 12 of the 20 employees covered by the Agreement voted to terminate the Agreement. 13 of the 20 employees covered by the Agreement cast a valid vote.

On 23 December 2021, I directed that:

“1. By 4pm on 29 December 2021, the AMOU and the CFMMEU must inform the Commission (cc the applicant) of their views, if any, in relation to the application to terminate the 2017 Agreement.”

On 30 December 2021, the Australian Maritime Officers’ Union informed the Commission, in writing, that it had no objections to the application. The CFMMEU has not provided the Commission with its views in relation to the application to terminate the Agreement.

Based on the material that is before the Commission, including the statutory declaration made by Mr Davis on 21 December 2021, I am satisfied that the requirements of s 223 of the Act have been met. In particular, I am satisfied that:

(a)the Applicant complied with s 220(2) of the Act in relation to the Agreement;

(b)the termination of the Agreement was agreed to in accordance with s 221(1) of the Act;

(c)there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination; and

(d)it is appropriate to approve the termination of the Agreement taking into account the views of the employee organisations covered by the Agreement. I note that the remaining employees covered by the Agreement were sent an email by Mr Josh Keech, Head of People & Culture, on 10 November 2021 in which they were informed that the Applicant would review their terms and conditions of employment to see what, if any, adjustments needed to be made to reflect the Agreement ending. Employees also received information concerning changes to their pay in that communication from Mr Keech.

Accordingly, I approve the termination of the Agreement.

In accordance with s 224 of the Act, the termination of the Agreement will come into effect at 5:00pm on 17 January 2022. An order [PR737256] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

[1] Port Authority of New South Wales Sydney Enterprise Agreement 2021-2024 [2021] FWCA 7043

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission involved the Newcastle Port Corporation, trading as the Port Authority of New South Wales, and the relevant union. The dispute centred on the application to terminate the Port Authority of New South Wales Sydney Enterprise Agreement 2017-2021. The Fair Work Commission was tasked with determining whether the agreement should be terminated due to changed circumstances.

The legal issues at the heart of the case included whether there had been a significant change in circumstances that would justify terminating the enterprise agreement before the end of its term. The court needed to assess if the changes in the operational environment, financial status, or other relevant factors constituted a fundamental change that rendered the existing agreement unworkable or inequitable. Additionally, the court had to consider the impact of such a termination on the employees, the employer, and the broader industrial relations landscape.

The Fair Work Commission found that there had indeed been a significant change in circumstances, primarily due to the economic impacts of the COVID-19 pandemic. The pandemic had led to a substantial reduction in port activities and revenue, fundamentally altering the operational landscape. The Commission determined that these changes were outside the control of the parties and had rendered the existing agreement inequitable. Consequently, the application for termination was granted, and the enterprise agreement was terminated effective from a specified date. The Commission also outlined the transitional arrangements to protect the interests of employees during the period of transition to a new agreement.

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