DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port Lincoln Tugs Pty Ltd
(AG2019/865)

PORT LINCOLN TUGS PTY LIMITED & MUA ENTERPRISE AGREEMENT 2019

Port authorities
COMMISSIONER PLATT	ADELAIDE, 2 MAY 2019

Application for approval of the Port Lincoln Tugs Pty Limited & MUA Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Port Lincoln Tugs Pty Limited & MUA Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Port Lincoln Tugs Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 15 April 2019.

[3] On 17 April 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 2 May 2019. The undertaking deals with the following topics:

• The definition of a shift worker will be for the purposes of the National Employment Standards (NES).

• Despite clause 11.1.3 of the Agreement, probationary employees will be entitled to notice under the NES.

• Clause 19 (Cashing out of Annual Leave) of the Agreement will operate subject to the protections contained in the undertaking.

• Clause 22.4 of the Agreement shall no longer apply.

• The public holidays contained in clause 24.2 of the Agreement will include those Gazetted by the South Australian Government.

• The rates of pay for casual employees shall be either the “day rate” contained in clause 11.4.2 of the Agreement or the “Per Job Amount” in Schedule B Allowances, whichever is the greater.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[8] The “Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)”, 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) of the Act I note that the Agreement covers this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 27 January 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Port Lincoln Tugs Pty Ltd recently appeared before the Fair Work Commission to seek approval of the MUA Enterprise Agreement 2019. The agreement was between the company and its employees, represented by the Maritime Union of Australia. The application centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues in the case revolved around the compliance of the agreement with the legislative framework provided by the Act. Key considerations included whether the agreement was made in good faith, whether it contained minimum entitlements prescribed by the Act, and if it was appropriately certified by the Independent certifier, the Australian Building and Construction Commission. Additionally, the court had to determine if the agreement adhered to the requirements for direct or indirect agreements and if it was consistent with the objectives of the Act, particularly in relation to promoting harmonious, productive, and cooperative workplace relations.

The Fair Work Commission assessed the arguments and evidence presented by both parties. The Commission concluded that the agreement was made in good faith and contained all the required minimum entitlements as stipulated by the Act. It also found that the agreement was appropriately certified and was consistent with the objectives of the Act. Consequently, the Commission approved the agreement, recognising its compliance with the statutory requirements and its potential to foster positive workplace relations. The decision was grounded in the thorough analysis of the provisions of the Act and the specifics of the agreement.

The final orders of the Commission were to approve the MUA Enterprise Agreement 2019 between Port Lincoln Tugs Pty Ltd and its employees, subject to the terms and conditions set out in the agreement. The approval was contingent upon the continued compliance with the Act and the maintenance of good faith in the employer-employee relationship.

Port Lincoln Tugs Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established