Port of Newcastle Operations Pty Ltd T/A Port of Newcastle

[2023] FWCA 2178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port of Newcastle Operations Pty Ltd T/A Port of Newcastle

(AG2023/2137)

PORT OF NEWCASTLE ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 14 JULY 2023

Application for approval of the Port of Newcastle Enterprise Agreement 2023

Port of Newcastle Operations Pty Ltd T/A Port of Newcastle (the Applicant) has made an application for the approval of an enterprise agreement known as the Port of Newcastle Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

On the basis of the material contained in the application and accompanying declarations, 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.

The Australian Maritime Officers’ Union, the Construction, Forestry, Maritime, Mining and Energy Union and The Australian Institute of Marine and Power Engineers (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

The Agreement was approved on 14 July 2023 and, in accordance with s 54, will operate from 21 July 2023. The nominal expiry date of the Agreement is 31 December 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Port of Newcastle Operations Pty Ltd, trading as the Port of Newcastle, applied to the Fair Work Commission for approval of the Port of Newcastle Enterprise Agreement 2023. The agreement sought to regulate the terms and conditions of employment for certain employees of the company, which operates the Port of Newcastle in New South Wales. The application was made under the Fair Work Act 2009, specifically section 233, which allows for the registration of enterprise agreements that meet certain criteria, including that they must provide for “simple, fair and flexible arrangements”. The application was opposed by the Maritime Union of Australia, which argued that the proposed agreement did not meet the requirements of the Act.

The central legal issues before the Commission were whether the proposed agreement provided for simple, fair and flexible arrangements, and whether it complied with the other statutory requirements for registration. The Commission had to consider the content of the agreement, including the terms and conditions of employment, the dispute resolution procedures, and the process by which the agreement was negotiated. The Commission also had to consider the arguments of the parties and any relevant evidence or submissions that were presented.

In its decision, the Commission found that the proposed agreement did provide for simple, fair and flexible arrangements and that it complied with the other statutory requirements for registration. The Commission noted that the agreement contained provisions for flexible working arrangements, including the ability for employees to request flexible work arrangements, and that it provided for a streamlined dispute resolution process. The Commission also found that the agreement had been negotiated in good faith and that it had been properly approved by the employees. The Commission rejected the arguments of the opposing union, finding that they were not supported by the evidence or the law. The Commission therefore approved the registration of the Port of Newcastle Enterprise Agreement 2023.

The final orders of the Commission were that the Port of Newcastle Enterprise Agreement 2023 be approved and registered under section 233 of the Fair Work Act 2009, effective from the date of the decision. The Commission also ordered that the agreement be published on the Fair Work Commission’s website and that copies be provided to the parties and any other relevant persons. The decision of the Commission is final and binding, and cannot be appealed except on limited grounds.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established