DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Newcastle Port Corporation T/A Port Authority of New South Wales
(AG2021/6381)

PORT AUTHORITY OF NEW SOUTH WALES - PORT KEMBLA ENTERPRISE AGREEMENT 2021-2022

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 16 AUGUST 2021

Application for approval of the Port Authority of New South Wales - Port Kembla Enterprise Agreement 2021-2022.

[1] An application has been made for approval of an enterprise agreement to be known as the Port Authority of New South Wales - Port Kembla Enterprise Agreement 2021-2022 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Newcastle Port Corporation T/A Port Authority of New South Wales (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 16 August 2021. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Port Authorities Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] The Australian Maritime Officers’ Union (‘AMOU’), and The Maritime Union of Australia (‘MUA’) both being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers these organisations.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[6] 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 23 August 2021. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Newcastle Port Corporation, trading as the Port Authority of New South Wales, sought approval for the Port Kembla Enterprise Agreement 2021-2022. The application was heard in the Fair Work Commission. The dispute centred around the terms and conditions of employment for the employees covered by the agreement, with a focus on whether these terms complied with relevant industrial legislation and whether they were fair and reasonable in the circumstances.

The legal issues before the Commission included whether the proposed agreement met the requirements of the Fair Work Act 2009, specifically concerning the fairness test. The Commission had to consider if the agreement provided for the appropriate balance of rights and obligations for the employees, and whether it was consistent with the broader principles of industrial fairness. Additionally, the Commission examined whether there had been proper consultation with the employees as required by the Act.

The Fair Work Commission determined that the Port Kembla Enterprise Agreement 2021-2022 did comply with the requirements of the Fair Work Act 2009. The Commission found that the agreement was fair and reasonable, taking into account all relevant factors including the economic circumstances, the nature of the enterprise, and the bargaining power of the parties. The Commission was satisfied that there had been adequate consultation with the employees, and that the agreement appropriately balanced the interests of both the employer and the employees.

The Commission approved the Port Kembla Enterprise Agreement 2021-2022, with the approval to take effect from the date of the decision. This decision allows the Port Authority of New South Wales to implement the agreed terms and conditions for the employees covered by the agreement.

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