Port of Portland Pty Limited

[2019] FWCA 8211

[2019] FWCA 8211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port of Portland Pty Limited
(AG2019/4182)

PORT OF PORTLAND - MUA DECKHANDS ENTERPRISE AGREEMENT 2018

Maritime industry
COMMISSIONER LEE	MELBOURNE, 3 DECEMBER 2019

Application for approval of the Port of Portland - MUA Deckhands Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Port of Portland - MUA Deckhands Enterprise Agreement 2018 (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 Portland Pty Limited. The Agreement is a single enterprise agreement.

[2] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the details of the vote via email on 11 October 2019. I note that the vote commenced less than seven clear days later, on 16 October 2019. Also relevant is the fact that the F17 states that all employees that will be covered by the Agreement cast a valid vote to approve the Agreement. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, 1   the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.2

[3] The Employer has provided written undertakings. A copy of the undertakings are attached in Annexure A. 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 undertakings are taken to be a term of the agreement.

[4] 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.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 29 – Redundancy

However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 10 December 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Annexure A

 1   [2018] FWCFB 2732.

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

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