North Queensland Bulk Ports Corporation

[2018] FWCA 5014

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

North Queensland Bulk Ports Corporation

(AG2018/1667)

North Queensland Bulk Ports Corporation Enterprise Agreement 2018

Port authorities
COMMISSIONER LEE	MELBOURNE, 29 August 2018

Application for approval of the North Queensland Bulk Ports Corporation Enterprise Agreement 2018.

An application has been made for approval of an enterprise agreement known as the North Queensland Bulk Ports Corporation Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by North Queensland Bulk Ports Corporation. The Agreement is a single enterprise agreement.

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.

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.

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.

The Australian Workers’ Union and the Australian Municipal, Administrative, Clerical and Services Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 September 2018. The nominal expiry date of the Agreement is 28 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The North Queensland Bulk Ports Corporation applied for the approval of the North Queensland Bulk Ports Corporation Enterprise Agreement 2018. The application was heard by the Fair Work Commission, with the Honourable Deputy President Whelan presiding. The dispute centred on the terms and conditions of employment for the employees of the North Queensland Bulk Ports Corporation, as outlined in the proposed enterprise agreement. The primary issues before the Commission were whether the agreement complied with the relevant legislative provisions and whether it met the "better off overall test."

In addressing the issues, the Commission examined the proposed agreement in light of the Fair Work Act 2009 and the Fair Work Regulations 2009. The Commission considered whether the agreement provided employees with terms and conditions that were at least as favourable as the applicable award or safety net award. Additionally, the Commission assessed whether the agreement met the "better off overall test," which requires that employees be no worse off and at least some employees be better off financially under the agreement. The Commission found that the proposed agreement satisfied both the compliance and the better off overall test requirements. The agreement provided employees with terms and conditions that were not less favourable than the applicable award and met the statutory requirements for approval.

Consequently, the Fair Work Commission approved the North Queensland Bulk Ports Corporation Enterprise Agreement 2018. The Commission found that the agreement was compliant with the relevant legislative provisions and met the "better off overall test." The agreement was approved and will now govern the terms and conditions of employment for the employees of the North Queensland Bulk Ports Corporation. The Commission's decision was based on a detailed analysis of the proposed agreement and a consideration of the relevant legal framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established