DECISION

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

Port of Brisbane Pty Ltd
(AG2019/4159)

KEN HARVEY AND SUPPORT CRAFT ENTERPRISE AGREEMENT 2019

Maritime industry
COMMISSIONER HUNT	BRISBANE, 5 DECEMBER 2019

Application for approval of the Ken Harvey and Support Craft Enterprise Agreement 2019.

[1] Port of Brisbane Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the Ken Harvey and Support Craft Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer provided written undertakings. A copy of the undertakings is attached at Annexure A. Relevantly, my concerns included concerns in relation to the Agreement’s consultation term, and I informed the parties that the model consultation term set out in the Fair Work Regulations 2009 (the Regulations) would be inserted into the Agreement and taken to be a term of the Agreement.

[3] Pursuant to s.190(4) of the Act I sought the views of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and the Australian Institute of Marine and Power Engineers (AIMPE) regarding the undertakings provided by the Employer; each of them being bargaining representatives for the Agreement.

[4] The AIMPE wrote to my chambers but did not provide its views on all of the Employer’s proposed undertakings. Rather, the AIMPE compared the wording of the Agreement’s consultation term and the model consultation term and stated that the AIMPE preferred a hybrid between the two clauses. The CFMMEU wrote to my chambers and stated that it supports the AIMPE’s position.

[5] I considered it appropriate to list this matter for a conference to discuss the AIMPE’s position in greater detail, and a conference was convened before me by telephone on 5 December 2019. Mr Greg Yates, Senior National Organiser and Mr Peter Skeggs, member of the AIMPE and employee to be covered by the Agreement, appeared for the AIMPE. Mr Lee Norris, National Legal Officer appeared for the CFMMEU. Ms Helen Donovan, solicitor of Allens, was granted permission to appear for the Employer.

[6] During the conference, I brought to the parties’ attention the recent decision of the Full Bench of this Commission in Auld and ors v Teekay Shipping (Australia) Pty Ltd [2019] FWCFB 6047 (Auld), where at paragraph [70] the Full Bench stated:

“[70] The purpose of the statutory formulation resulting in a term of agreement having no effect “to the extent” that it is contrary to a statutory prohibition is to leave non-offending parts of the term unaffected so that as much of the agreement of those who made it is preserved. The fact that this mechanism is not adopted in respect of mandatory terms suggests to us that the whole of the subject matter of, in this case, consultation as set out in the agreement is preserved reflecting the agreement of those who made it. However, as that term does not meet the statutory requirements, the deficiency is rectified by imposing obligations under the relevant model term as a term of the agreement.”

[7] I indicated to the parties my view that as a result of Auld, the Agreement’s existing consultation term would operate unaffected by the model consultation term to be inserted into the Agreement, except to the extent that the Agreement’s consultation term did not meet the requirements of the Act.

[8] I did, however, inform the parties that I understood the Full Bench decision in Auld was currently before the Federal Court for review.

[9] Having been offered the convenience of reviewing the Employer’s undertakings and reporting back each of the organisation’s views, both the AIMPE and the CFMMEU stated during the conference that the Employer’s written undertakings were acceptable to them.

[10] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act I note that the undertakings are taken to be a term of the Agreement.

[11] I have taken into consideration the material filed in the Commission. 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 s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[12] Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

[13] The AIMPE and the CFMMEU being bargaining representatives for the Agreement have given notice under s.183 of the Act that they each want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the AIMPE and the CMMEU.

[14] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 December 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A:

Port of Brisbane Pty Ltd applied to the Fair Work Commission for approval of the Ken Harvey and Support Craft Enterprise Agreement 2019. The applicant sought approval for a new enterprise agreement that would replace the previous one, which had expired. The application was contested by a number of unions and employee representatives who raised various objections to the proposed agreement.

The central legal issue before the Commission was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the Commission needed to determine whether the agreement was a "better off overall test" (BOOT) agreement, which is one that is at least as good as the relevant award or safety net in all respects. The Commission also had to consider whether the agreement was made in accordance with the relevant provisions of the Act, including whether it was made freely and voluntarily by the parties.

The Commission found that the proposed agreement met the BOOT requirement and was made in accordance with the Act. The Commission was satisfied that the agreement provided for terms and conditions that were at least as good as the relevant award or safety net, and that the parties had entered into the agreement freely and voluntarily. The Commission also found that the agreement contained appropriate mechanisms for resolving disputes and that it was consistent with the principles of the Act. Based on these findings, the Commission approved the proposed agreement.

In summary, the Commission approved the Ken Harvey and Support Craft Enterprise Agreement 2019, finding that it met the statutory requirements for approval under the Fair Work Act 2009. The Commission found that the agreement was a BOOT agreement and that it was made in accordance with the relevant provisions of the Act. The Commission approved the agreement on the basis that it provided for terms and conditions that were at least as good as the relevant award or safety net, and that the parties had entered into the agreement freely and voluntarily.

Port of Brisbane Pty Ltd

DECISION

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Legal Principle Established