Port Botany Operations Pty Ltd as trustee for Port Botany Unit Trust Summary

[2022] FWCA 2693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port Botany Operations Pty Ltd as trustee for Port Botany Unit Trust

(AG2022/2116)

NSW PORTS ENTERPRISE AGREEMENT 2022

Port authorities
COMMISSIONER P RYAN	SYDNEY, 9 AUGUST 2022

Application for approval of the NSW Ports Enterprise Agreement 2022

Port Botany Operations Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known the NSW Port Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

The employer 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. The undertakings are taken to be a term of the Agreement.

Section 186, 187, 188 and 190

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.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission (FWC) involved an application by Port Botany Operations Pty Ltd as trustee for the Port Botany Unit Trust to approve the NSW Ports Enterprise Agreement 2022. The parties involved in the dispute were Port Botany Operations Pty Ltd, acting as trustee for the Port Botany Unit Trust, and the Maritime Union of Australia. The nature of the dispute centred around the approval of the terms and conditions set out in the enterprise agreement for employees within the NSW Ports sector.

The legal issues before the Commission were whether the enterprise agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement provided for a fair and efficient workplace, whether it met the minimum entitlements set out in the Act, and if it had been negotiated in good faith. The Commission also considered whether the agreement met the criteria for "no disadvantage" and "better off overall" tests, which are essential for the approval of such agreements.

The Fair Work Commission examined the evidence presented by both parties and the provisions of the agreement. The Commission concluded that the enterprise agreement was fair and efficient and met the requirements of the Act. It found that the agreement provided for minimum entitlements and had been negotiated in good faith. The FWC determined that the agreement did not result in any employee being worse off overall and that it provided for a fair and efficient workplace. Consequently, the Commission approved the NSW Ports Enterprise Agreement 2022.

In approving the agreement, the Fair Work Commission made orders confirming its approval and mandated that the agreement be registered with the Fair Work Commission Register. The Commission also directed that the agreement would be in force from the date of the decision and would apply to the employees covered by the agreement.

Port Botany Operations Pty Ltd as trustee for Port Botany Unit Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established