Pilbara Ports Authority

[2024] FWCA 930

[2024] FWCA 930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Pilbara Ports Authority

(AG2024/460)

PILBARA PORTS – PORT OF PORT HEDLAND VTSO AGREEMENT 2024

Port authorities
COMMISSIONER LIM	PERTH, 20 MARCH 2024

Application for approval of the Pilbara Ports – Port of Port Hedland VTSO Agreement 2024

1. Pilbara Ports Authority (the Applicant) has made an application for the approval of an enterprise agreement known as the Pilbara Ports – Port of Port Hedland VTSO Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (AmendingAct) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 14 July 2023 and the Agreement was made on 14 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, 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.

1. I note that the following clauses of the Agreement appear to be inconsistent with the National Employment Standards (NES);

· Clause 5.1 states that an employee is entitled to accrue 23.5 on duty shifts of annual leave, inconsistent with s.87(1) of the Act which specifies annual leave in weeks.

· Clause 5.3.3 indicates employees have 7.6 hours deducted when they are on personal leave. Issues may arise where this amounts to less than 10 days of leave as per s 96 of the Act, as a ‘day’ may be longer than 7.6 hours where employees work 12-hour shifts.

· The entitlement to compassionate leave provided by Clause 5.7 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s 105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s 105(1)(c) of the Act.

· Clause 2.8 of the agreement appears to state that if an employee is absent for a period of 3 days without the consent of the Company and without notification to the Company shall be evidence that the employee has abandoned their employment. The Employee will be deemed to have abandoned their employment if they have not established, within 14 days, that they were absent for a reasonable cause. Clause 2.8 states the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the Company, whichever is later. This appears to be inconsistent with the NES at section 117 of the Act.

1. However, I am satisfied that under clause 1.5.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Maritime Officers’ Union (the AMOU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 20 March 2024 and, in accordance with s 54, will operate from 27 March 2024. The nominal expiry date of the Agreement is 20 March 2028.

COMMISSIONER

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ANNEXURE A