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

[2021] FWCA 7043

[2021] FWCA 7043

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newcastle Port Corporation T/A Port Authority of New South Wales
(AG2021/8446)

PORT AUTHORITY OF NEW SOUTH WALES SYDNEY ENTERPRISE AGREEMENT 2021 - 2024

Port authorities
COMMISSIONER LEE	MELBOURNE, 9 DECEMBER 2021

Application for approval of the Port Authority of New South Wales Sydney Enterprise Agreement 2021 - 2024

[1] An application has been made for approval of an enterprise agreement known as the Port Authority of New South Wales Sydney Enterprise Agreement 2021 - 2024 (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 T/A Port Authority of New South Wales (the Employer). The Agreement is a single enterprise agreement.

[2] The Employer has 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.

[3] 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.

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Maritime Officers’ Union and the Construction, Forestry, Maritime, Mining and Energy Union, being bargaining representatives for the Agreement, have each given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations.

[6] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 45.3 – Notice of termination by Employee.

However, noting clause 3.4 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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<AE514214  PR736626>

Annexure A