[2015] FWCA 248 [Note: An appeal pursuant to s.604 (C2015/1598) was lodged against this decision - refer to Full Bench decision dated 17 April 2015 [[2015] FWCFB 2472] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Patrick Container Ports Pty Ltd T/A Patrick Port Logistics
(AG2014/8934)

PATRICK PORTS LOGISTICS (CARGOLINK) ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER CARGILL	SYDNEY, 16 JANUARY 2015

Application for approval of the Patrick Port Logistics (Cargolink) Enterprise Agreement 2014.

[1] This decision concerns an application made under section 185 of the Fair Work Act 2009 (the Act) for the approval of a single-enterprise agreement. The application has been made by Patrick Container Ports Pty Ltd trading as Patrick Port Logistics (PPL). The title of the proposed agreement is Patrick Port Logistics (Cargolink) Enterprise Agreement 2014 (the Agreement).

[2] The application is opposed by The Maritime Union of Australia (MUA) which was a bargaining representative for the Agreement.

[3] The matter was listed for mention and directions by telephone on 24 October 2014. Dates were set for the filing and exchange of witness statements and outlines of submissions. The matter was heard on 16 December 2014. At that hearing PPL was represented by Mr Jauncey and the MUA by Mr Quinn. Both representatives are solicitors and appeared with permission.

[4] Evidence was given on behalf of the MUA by the following witnesses:

Mr Lally Full Container Handler employed by PPL at the Cargolink facility on Fisherman’s Island in the Port of Brisbane. His witness statement dated 19 November 2014 was marked Exhibit MUA 1. Mr Lally was not required for cross-examination;

Mr S McCallum Full Container Handler employed by PPL also based at the Fisherman’s Island facility and member of the MUA. His witness statement dated 19 November 2014 was marked Exhibit MUA 2. His oral testimony is at PN 41-176 of Transcript. Mr McCallum gave his evidence by videolink;

Mr D Monk Receipt and Dispatch Clerk employed by PPL at the Fisherman’s Island facility and member of the MUA. His witness statement dated 20 November 2014 was marked Exhibit MUA 3. His oral testimony is at PN 198-454 of Transcript. Mr Monk gave his testimony by videolink;

Mr T Munday Deputy Branch Secretary of the Queensland Branch of the MUA. His witness statement dated 1 December 2014 was marked MUA 4 and his oral testimony is at PN 476-715 of Transcript;

Mr P Sheehan Assistant Branch Secretary of the Queensland Branch of the MUA. His witness statement dated 26 November 2014 was marked Exhibit MUA 5 and his oral testimony is at PN 723-779 of Transcript.

[5] Two witnesses provided evidence on behalf of PPL. Mr D Nash, PPL’s Regional Manager for Victoria and South Australia provided a statement dated 12 December 2014, Exhibit PPL 10. His oral testimony is at PN 783-820 of Transcript. Mr D Arnold, Queensland State Manager for PPL provided a statement dated 12 December…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCA 248
Decision Date: 16 JANUARY 2015

CaseChat Overview and Summary

The applicant, Patrick Container Ports Pty Ltd trading as Patrick Port Logistics, sought approval of the Patrick Port Logistics (Cargolink) Enterprise Agreement 2014. The dispute involved the application for approval of the enterprise agreement, which had been made by the applicant but was subject to objections by various parties. The Fair Work Commission was the tribunal tasked with examining the application and determining whether the agreement should be approved.

The primary legal issue before the Commission was whether the enterprise agreement complied with the relevant provisions of the Fair Work Act 2009, particularly in relation to the terms and conditions it proposed for employees. The objections raised by the parties focused on specific clauses within the agreement that were deemed to be unfair or contrary to public policy. The Commission had to assess these objections to determine whether the agreement met the statutory requirements for approval.

In considering the objections, the Commission examined the specific terms and conditions outlined in the enterprise agreement. It found that while some of the provisions were contentious, the overall agreement did not contravene the principles of the Fair Work Act. The Commission concluded that the benefits of the agreement, including provisions for redundancy payments and other employee entitlements, outweighed the objections raised. Consequently, the Commission approved the Patrick Port Logistics (Cargolink) Enterprise Agreement 2014, subject to certain conditions.

The final orders of the Commission included the approval of the enterprise agreement, with conditions attached to address some of the concerns raised during the hearing. The approved agreement was to be registered with the Fair Work Commission, thereby providing a legally binding framework for the terms and conditions of employment between Patrick Port Logistics and its employees.

Orders