DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port Botany Operations Pty Limited trading as Port Botany Unit Trust T/A NSW Ports
(AG2017/47)

NSW PORTS ENTERPRISE AGREEMENT 2016

Port authorities
COMMISSIONER ROE	MELBOURNE, 1 FEBRUARY 2017

Application for approval of the NSW Ports Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the NSW Ports Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Port Botany Operations Pty Limited trading as Port Botany Unit Trust T/A NSW Ports. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Maritime Officers’ Union 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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 1 February 2017 and, in accordance with s.54, will operate from 8 February 2017. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved Port Botany Operations Pty Limited trading as Port Botany Unit Trust, which sought approval of the NSW Ports Enterprise Agreement 2016. The application was heard in the Fair Work Commission (FWC). The primary issue was whether the proposed agreement complied with the relevant provisions of the Fair Work Act 2009. Specifically, the applicant needed to demonstrate that the agreement met the requirements for an enterprise agreement, including the need for it to be in writing, to be made by an employer and employees, and to be approved by the Commission. The applicant had to show that the agreement was made by a majority of the relevant employees and that it covered all employees within the specified bargaining unit.

The Commission considered whether the agreement was made free from coercion, undue influence, or other inappropriate conduct, and whether it complied with the minimum terms and conditions set out in the Fair Work Act. The applicant had to demonstrate that the agreement contained terms that were fair and reasonable in all its aspects, and that it did not discriminate against any class of employees. The Commission also needed to ensure that the agreement provided for adequate mechanisms for dispute resolution and that it contained appropriate provisions for the protection of employees' health and safety.

The Fair Work Commission determined that the NSW Ports Enterprise Agreement 2016 met all the necessary criteria for approval. The Commission found that the agreement was made free from any undue influence or coercion, and that it contained terms that were fair and reasonable. The applicant successfully demonstrated that the agreement provided for adequate mechanisms for dispute resolution and included appropriate health and safety provisions. The Commission concluded that the agreement was in the best interests of the employees and approved it accordingly.

The final orders of the Commission included the approval of the NSW Ports Enterprise Agreement 2016, effective from the date of the decision. The Commission also directed that the agreement be registered with the Fair Work Ombudsman and that it be provided to all relevant employees. The applicant was required to take all necessary steps to ensure that the agreement was brought to the attention of all employees and that it was implemented in accordance with the Commission's approval.

Port Botany Operations Pty Limited trading as Port Botany Unit Trust T/A NSW Ports

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established