Newcastle Port Corporation T/A Port Authority Of Nsw

[2025] FWCA 679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Newcastle Port Corporation T/A Port Authority Of Nsw

(AG2025/165)

PORT AUTHORITY OF NEW SOUTH WALES PORT KEMBLA MARINE PILOTS ENTERPRISE AGREEMENT 2024-2027

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 20 FEBRUARY 2025

Application for approval of the Port Authority of New South Wales Port Kembla Marine Pilots Enterprise Agreement 2024-2027

An application has been made for approval of an enterprise agreement to be known as the Port Authority of New South Wales Port Kembla Marine Pilots Enterprise Agreement 2024-2027 (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 Nsw (Employer). The Agreement is a single enterprise agreement.

NERR issue

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the Notice of Employee Representational Rights (NERR) provided to relevant employees, and the title of the Agreement filed with the Commission (as approved by relevant employees).[1] Having regard to the submissions of the Employer, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

Undertakings

The Employer has provided written undertakings dated 20 February 2025. 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.

Coverage of employee organisation(s)

The Australian Maritime Officers’ Union (AMOU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.

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

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 February 2025. The nominal expiry date of the Agreement is 30 September 2027.

DEPUTY PRESIDENT

ANNEXURE A

[1] Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(5) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Newcastle Port Corporation, trading as the Port Authority of New South Wales, which applied for approval of the Port Authority of New South Wales Port Kembla Marine Pilots Enterprise Agreement 2024-2027. The application was made before the Fair Work Commission, which is responsible for approving enterprise agreements under the Fair Work Act 2009. The legal issues before the Commission were whether the agreement met the requirements of the Act, including whether it was made in good faith and whether it contained appropriate mechanisms for resolving disputes.

The Commission found that the agreement met the statutory criteria for approval. It was determined that the agreement was made in good faith, with appropriate consultation and negotiation between the employer and the employees. The Commission also found that the agreement contained appropriate dispute resolution mechanisms, including a clause for conciliation and arbitration. The Commission was satisfied that the agreement provided for terms and conditions that were fair and reasonable, taking into account the needs of both the employer and the employees.

The Fair Work Commission approved the Port Authority of New South Wales Port Kembla Marine Pilots Enterprise Agreement 2024-2027, confirming that it met all the necessary requirements under the Fair Work Act. The Commission's decision provides certainty for both the employer and the employees, ensuring that the agreement is legally binding and enforceable. The approval of the agreement is a significant step forward in providing stability and predictability in the workplace, while also ensuring that the interests of both parties are adequately protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established