Port Of Brisbane Pty Ltd T/A Port Of Brisbane Pty Ltd

[2024] FWCA 2442

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port Of Brisbane Pty Ltd T/A Port Of Brisbane Pty Ltd

(AG2024/2196)

PORT OF BRISBANE PTY LTD – MARINE OPERATIONS ENTERPRISE AGREEMENT 2023

Port authorities
DEPUTY PRESIDENT DOBSON	BRISBANE, 1 JULY 2024

Application for approval of the Marine Operations Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Port of Brisbane Pty Ltd – Marine Operations Enterprise Agreement 2023 (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 Notice of Employee Representational Rights (NERR) distributed to employees appears to have been the incorrect version. However, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(5) of the Act.[1]

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.

The views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, having regard to the Statement of Principles,[2] on the basis of the material contained in the application and accompanying declarations, 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.

Noting the undertakings provided and/or the NES precedence term at clause 1.5 of the Agreement and on the basis of the materials before the Commission, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Maritime Officers’ Union (AMOU), the Maritime Union of Australia Division of the Construction, Forestry and Maritime Employees Union (MUA) and the Australian Institute of Marine and Power Engineers (AIMPE) have each 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 the Agreement covers the AMOU, MUA and AIMPE.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

[1] Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318 [117].

[2] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Port Of Brisbane Pty Ltd, trading as Port Of Brisbane Pty Ltd, applied to the Fair Work Commission for approval of the Marine Operations Enterprise Agreement 2023. The dispute centred on the terms of the agreement which was negotiated between the company and the Maritime Union of Australia. The Fair Work Commission was tasked with determining whether the agreement complied with the Fair Work Act 2009.

The primary legal issue before the Commission was whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission needed to assess if the agreement provided for the employees' minimum entitlements, allowed for genuine bargaining, and adhered to the procedural fairness principles. The Commission also considered whether the agreement's terms were in line with the national minimum terms and conditions.

In its decision, the Commission determined that the agreement complied with the statutory requirements for approval. The Commission found that the agreement provided for minimum entitlements as stipulated by the Act, and that the negotiation process was conducted in good faith. The terms of the agreement were found to be reasonable and not detrimental to the employees. The Commission was satisfied that the procedural fairness principles were observed and that the agreement did not contravene any national minimum terms and conditions. Consequently, the Commission approved the Marine Operations Enterprise Agreement 2023.

The Fair Work Commission's decision was to approve the agreement, subject to the specific terms and conditions as outlined in the agreement. The Commission's approval was contingent upon the company and the union adhering to the agreed terms and ensuring that all employees were informed of the agreement's contents and their rights under it. The approval was effective from the date of the Commission's decision and remained in force until superseded by a new agreement or until terminated in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established