DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port of Newcastle Pty Ltd
(AG2020/1421)

PORT OF NEWCASTLE ENTERPRISE AGREEMENT 2019

Port authorities
COMMISSIONER JOHNS	SYDNEY, 29 MAY 2020

Application for approval of the Port of Newcastle Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Port of Newcastle Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by the Port of Newcastle Pty Ltd. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Maritime Officers’ Union, the Maritime Union of Australia a Division of the Construction, Forestry, Maritime, Mining and Energy Union and the Australian Institute of Marine and Power Engineers (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) I note that the Agreement covers these Organisations.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 June 2020. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Port of Newcastle Pty Ltd sought approval for the Port of Newcastle Enterprise Agreement 2019. The application was heard by the Fair Work Commission (FWC), with the Fair Work Commission's decision being challenged by the Maritime Union of Australia (MUA). The dispute centred on the validity and fairness of the proposed agreement, particularly concerning the terms and conditions of employment and the process by which the agreement was reached.

The primary legal issues before the FWC were whether the agreement was made in accordance with the Fair Work Act 2009 and whether it met the 'better off overall test'. This test ensures that employees are not worse off financially under the new agreement compared to their existing conditions. Additionally, the court needed to consider whether the process leading to the agreement was fair and whether there was sufficient evidence of genuine agreement among the employees.

The FWC carefully examined the evidence presented by both parties. It considered the consultation process, the level of employee participation, and the financial implications of the proposed agreement. The Commission concluded that the agreement was made in accordance with the Act and that it passed the 'better off overall test'. The FWC also found that the process was fair and that there was genuine agreement among the employees. Consequently, the FWC approved the Port of Newcastle Enterprise Agreement 2019.

The final orders included the approval of the enterprise agreement, with specific conditions to ensure compliance with the Fair Work Act and to monitor the implementation of the agreement. The MUA's challenge was dismissed, and the agreement was set to take effect as per the terms outlined.

Port of Newcastle 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