Newcastle Port Corporation Summary

[2023] FWCA 725

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Newcastle Port Corporation

(AG2023/273)

Port Authority of New South Wales – Port Kembla Enterprise Agreement 2022 - 2023

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 MARCH 2023

Application for approval of the Port Authority of New South Wales – Port Kembla Enterprise Agreement 2022 - 2023

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 2022 - 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by the Newcastle Port Corporation (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 7 March 2023. 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 organisations

The Maritime Union of Australia, and the Australian Maritime Officers’ Union, 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.

Conclusion

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.

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 14 March 2023. The nominal expiry date of the Agreement is 30 June 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Newcastle Port Corporation was the subject of an application for approval of the Port Authority of New South Wales – Port Kembla Enterprise Agreement 2022-2023. The dispute arose between the Port Authority of New South Wales and the Newcastle Port Corporation, which involved the need for formal approval of the proposed enterprise agreement. The application was heard by the Fair Work Commission.

The central legal issue before the Commission was whether the enterprise agreement complied with the requirements of the Fair Work Act 2009. The agreement needed to meet the criteria for being a "modern award" as defined by the Act, which included ensuring that it did not provide less favourable terms and conditions than those set out in the relevant modern award. The Commission had to determine if the agreement appropriately balanced the interests of both the employer and the employees.

The Fair Work Commission found that the proposed agreement did indeed comply with the statutory requirements. It provided for terms and conditions that were not less favourable than those in the applicable modern award and adequately represented the interests of both parties. The Commission approved the agreement, recognising its fairness and compliance with the legislative framework. Consequently, the application was successful.

The Commission issued an order approving the Port Authority of New South Wales – Port Kembla Enterprise Agreement 2022-2023. This decision ensured that the agreement would govern the employment terms and conditions of the relevant employees for the specified period.

Newcastle Port Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established