Port of Newcastle Pty Ltd

[2020] FWCA 4577

[2020] FWCA 4577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Port of Newcastle Pty Ltd
(AG2020/2366)

PORT OF NEWCASTLE ENTERPRISE AGREEMENT 2016-2019

Port authorities
DEPUTY PRESIDENT SAUNDERS	NEWCASTLE, 28 AUGUST 2020

Application for termination of the Port of Newcastle Enterprise Agreement 2016-2019.

[1] By an application dated 11 August 2020, Port of Newcastle Pty Ltd (Applicant) applied to the Fair Work Commission (Commission) to terminate the Port of Newcastle Enterprise Agreement 2016-2019 (Agreement) under s 222 of the Fair Work Act2009 (Cth) (Act). The Agreement has a nominal expiry date of 30 June 2019.

[2] Section 223 of the Act sets out the conditions which must be met for an enterprise agreement to be terminated pursuant to s 222 of the Act:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

[3] The application was supported by a Statutory Declaration made by Ms Marie Omark, Executive Manager Corporate Services of the Applicant, on 10 August 2020. Ms Omark declared, amongst other things, that 4 of the 4 employees covered by the Agreement cast a valid vote in relation to whether the Agreement should be terminated. Four employees voted to terminate the Agreement.

[4] On 12 August 2020, I directed that:

“1. By 4pm on 19 August 2020, Port of Newcastle Pty Ltd must provide a copy of these directions to all employees covered by the Agreement, together with a copy of the Form F24 and Form F24A filed by Port of Newcastle Pty Ltd in the Fair Work Commission in support of its application to terminate the Agreement.

2. By 4pm on 26 August 2020, any employee covered by the Agreement who either opposes the termination of the Agreement or wishes to inform the Fair Work Commission of their views in relation to the application to terminate the Agreement, must file in the Commission any submissions, witness statements and documents they wish to rely on in relation to the application to terminate the Agreement.

3. By 4pm on 26 August 2020, Port of Newcastle Pty Ltd must file in the Fair Work Commission a statutory declaration confirming compliance with direction 1 above.”

[5] On 26 August 2020, Ms Omark made a statutory declaration setting out the steps taken to comply with the directions made on 12 August 2020. On the basis of that statutory declaration, I am satisfied that the directions made on 12 August 2020 have been complied with.

[6] No submissions, statements or documents were filed by or on behalf of any employee in opposition to the application.

[7] Based on the material that is before the Commission, including the statutory declaration made by Ms Omark on 26 August 2020, I am satisfied that the requirements of s 223 of the Act have been met. Accordingly, I must approve the termination of the Agreement.

[8] In accordance with s 224 of the Act, the termination of the Agreement will come into effect at 5:00pm on 28 August 2020. An order [PR722247] giving effect to this decision will be issued today.

DEPUTY PRESIDENT

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