Newcastle Port Corporation T/A Port Authority Of Nsw

[2025] FWCA 543

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

(AG2025/164)

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

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 11 FEBRUARY 2025

Application for approval of the Port Authority of New South Wales Sydney 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 Sydney 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 10 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.

Workplace delegates’ rights clause

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Port Authorities Award 2020 is taken to be a term of the Agreement.

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 18 February 2025. The nominal expiry date of the Agreement is 30 June 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

In the case of Newcastle Port Corporation T/A Port Authority of New South Wales, the applicants sought approval for the Port Authority of New South Wales Sydney Marine Pilots Enterprise Agreement covering the years 2024 to 2027. The Fair Work Commission was tasked with determining whether this agreement complied with the necessary statutory requirements and met the legal standards set forth under the Fair Work Act 2009.

The central legal issues revolved around whether the enterprise agreement met the criteria for "genuine agreement" as required by the Act. This included examining if the agreement had been made in good faith and if it had been properly negotiated. Furthermore, the Commission needed to assess whether the agreement provided fair terms and conditions for the employees involved, including considerations of the pilots' wages, working conditions, and other employment-related matters.

The Commission found that the agreement was made in good faith and was a genuine enterprise agreement. The parties had engaged in meaningful negotiations, and the agreement provided fair and reasonable terms for the employees. The Commission also noted that the agreement addressed key issues such as wages, working conditions, and other employment terms in a manner that was equitable and in compliance with the statutory requirements. Based on these findings, the Commission approved the enterprise agreement.

The final orders included the approval of the Port Authority of New South Wales Sydney Marine Pilots Enterprise Agreement for the period 2024 to 2027, subject to the terms and conditions as outlined in the agreement. The agreement was to be registered and enforceable under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established