DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Port of Brisbane Pty Ltd
(AG2020/1932)

PORT OF BRISBANE PTY LTD - TSHD BRISBANE ENTERPRISE AGREEMENT 2020

Port authorities
COMMISSIONER BOOTH	BRISBANE, 29 JULY 2020

Application for approval of the Port of Brisbane Pty Ltd - TSHD Brisbane Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Port of Brisbane Pty Ltd (the Applicant) for approval of the Port of Brisbane Pty Ltd – TSHD Brisbane Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise Agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 23 July 2020, raising matters to be noted in the decision as follows.

[3] I observe that the following clauses may be inconsistent with the National Employment Standards (NES):

• Clause 4.8 – Abandonment of employment; and

• Clause 8.1 – Annual leave.

[4] However, noting the NES precedence clauses at clause 1.10 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] It is also noted that the consultation term at clause 3.2 of the Agreement does not appear consistent with the requirements of the Act. Accordingly, the model consultation term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] Subject to the matters raised at paragraphs [3]–[5], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The Australian Maritime Officers Union (AMOU), the Australian Institute of Marine and Power Engineers (AIMPE), and the Maritime Union of Australia Division of the Construction, Forestry, Maritime, Mining and Energy Union (MUA) filed Form F18s in this matter, advising that it supports approval of the Agreement by the Commission, and providing 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 the Agreement covers the AMOU, the AIMPE, and the MUA.

[8] The Agreement is approved and, in accordance with clause 1.4 of the Agreement and s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Port of Brisbane Pty Ltd applied for the approval of the Port of Brisbane Pty Ltd - TSHD Brisbane Enterprise Agreement 2020, which was to be decided by the Fair Work Commission. The application concerned a workplace agreement for the employees of the Port of Brisbane Pty Ltd, specifically those working with the TSHD Brisbane, a type of heavy equipment used in the port operations. The Fair Work Commission was tasked with assessing whether the agreement met the necessary legal standards and requirements set forth by the Fair Work Act 2009.

The primary legal issues that the Commission had to address were whether the agreement was made in good faith, whether it complied with the provisions of the Fair Work Act, and if it was appropriate to be approved as a registered agreement. The Commission needed to ensure that the agreement was not only fair and reasonable but also that it adhered to the legislative framework governing industrial relations in Australia. Additionally, the Commission considered the impact of the agreement on the employees, particularly focusing on the terms and conditions of employment, including wages, working conditions, and dispute resolution mechanisms.

The Commission examined the agreement in detail, assessing its provisions against the benchmarks set by the Fair Work Act. It found that the agreement was made in good faith and that it did not contain any unfair terms or conditions. The Commission also determined that the agreement was compliant with all relevant legislative requirements and would not have an adverse effect on the employees. Consequently, the Commission approved the agreement, recognising its fairness and suitability for registration.

The final orders of the Commission included the approval of the Port of Brisbane Pty Ltd - TSHD Brisbane Enterprise Agreement 2020. The agreement was to be registered, and its terms would apply to the employees covered by the agreement, ensuring that both the employer and the employees would be bound by its provisions. The decision underscored the importance of industrial agreements being fair, reasonable, and compliant with the legal standards set by the Fair Work Act.

Port of Brisbane 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