Port of Brisbane Pty Ltd

[2022] FWCA 3512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port of Brisbane Pty Ltd

(AG2022/3838)

Port of Brisbane Pty Ltd – Port Office/Operations Base Enterprise Agreement 2022

Port authorities
COMMISSIONER SIMPSON	BRISBANE, 13 OCTOBER 2022

Application for approval of the Port of Brisbane Pty Ltd – Port Office/Operations Base Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Port of Brisbane Pty Ltd – Port Office/Operations Base Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Port of Brisbane Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Australian Institute of Marine and Power Engineers (AIMPE), the Australian Maritime Officers’ Union (AMOU) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) all lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers AIMPE, AMOU and CFMMEU.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application by the Port of Brisbane Pty Ltd to the Fair Work Commission for the approval of its Enterprise Agreement. The agreement was sought to govern the terms and conditions of employment for employees within the specified enterprise. The Fair Work Commission, under the Fair Work Act 2009, was the tribunal tasked with evaluating the application and determining whether the agreement should be approved.

The primary legal issue before the Commission was whether the Enterprise Agreement met the requirements under the Fair Work Act for being a "barely recognisable" agreement. This involved assessing whether the agreement provided for fair and reasonable terms and conditions of employment, and whether it contained provisions that were contrary to public policy or were otherwise unfair. Additionally, the Commission had to consider whether the agreement provided adequate mechanisms for the resolution of disputes between the parties.

In reaching its decision, the Commission considered the provisions of the agreement, submissions from the parties, and relevant precedents. The Commission found that the agreement was fairly recognisable and contained provisions that were not contrary to public policy. The agreement was deemed to provide for fair and reasonable terms and conditions of employment, including provisions for dispute resolution mechanisms. The Commission also found that the agreement contained provisions that were necessary to ensure the efficient operation of the port, and that these provisions did not render the agreement unfair.

The Fair Work Commission approved the Enterprise Agreement, subject to certain modifications to ensure compliance with the Fair Work Act. These modifications included changes to ensure that the agreement did not contain provisions that were contrary to public policy or were otherwise unfair. The Commission also required the parties to implement certain dispute resolution mechanisms to ensure that any disputes that arose under the agreement could be resolved in a timely and efficient manner.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established