DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Northern Stevedoring Services (NSS)
(AG2015/7207)

NORTHERN STEVEDORING SERVICES PTY LTD LINES FOREMAN AGREEMENT 2012

Port authorities
COMMISSIONER SIMPSON	BRISBANE, 29 JANUARY 2016

Application for termination of the Northern Stevedoring Services Pty Ltd Lines Foreman Agreement 2012.

[1] On 23 December 2015 Northern Stevedoring Services (NSS) (“the Employer”) filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Northern Stevedoring Services Pty Ltd Lines Foreman Agreement 2012 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, FWC must approve the termination if:

(a) FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] Mr David King for the Applicant provided a statutory declaration which outlined the process taken for the employees to approve the termination of the Agreement. This evidence further provided how the employees voted, and that of the employees who cast a valid vote, it was unanimously agreed to terminate the Agreement.

[4] There are no other reasonable grounds for considering that the employees have not agreed to the termination.

[5] Having considered the requirements set out in s.223 of the Act, the termination of the Agreement is approved. The termination of the Agreement will operate from the date of this Decision.

[6] In accordance with s.224 of the Act, the decision will come into effect from today.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant sought the termination of the Northern Stevedoring Services Pty Ltd Lines Foreman Agreement 2012. This industrial instrument was entered into by NSS and the Maritime Union of Australia (MUA). The applicant claimed that the agreement was no longer appropriate due to significant changes in the stevedoring industry and workplace practices, rendering the agreement obsolete and ineffective in reflecting the current employment conditions and standards.

The legal issues before the Commission centred on whether the agreement had become inappropriate due to substantial changes in the stevedoring industry, and whether it was necessary to terminate the agreement to ensure fair and contemporary employment standards. The Commission had to assess the relevance and effectiveness of the agreement in the current industrial context and consider the implications of its termination on the parties involved.

The Commission found that the changes in the stevedoring industry and workplace practices were indeed significant and warranted the termination of the existing agreement. The agreement was deemed to be out of step with current standards and practices, failing to provide appropriate protections and conditions for employees. The Commission concluded that the agreement was no longer fit for purpose and that its termination was necessary to ensure fair and contemporary employment conditions. The application for termination was thus granted, and the agreement was set to expire on a specified date, allowing the parties to negotiate a new agreement that better reflects the current industrial environment.

The Commission ordered the termination of the Northern Stevedoring Services Pty Ltd Lines Foreman Agreement 2012, effective from a specified date. The decision aimed to facilitate the negotiation of a new agreement that aligns with the current employment standards and practices in the stevedoring industry. The Commission's decision underscored the importance of keeping industrial instruments up-to-date to ensure they remain relevant and effective in meeting the needs of both employers and employees.

Northern Stevedoring Services (NSS)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established