Port of Portland Pty Limited T/A Port of Portland Summary

[2022] FWCA 2876

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port of Portland Pty Limited T/A Port of Portland

(AG2022/3126)

Port of Portland Pty Ltd Enterprise Agreement 2022

Port authorities
COMMISSIONER MATHESON	SYDNEY, 23 AUGUST 2022

Application for approval of the Port of Portland Pty Ltd Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Port of Portland Pty Ltd Enterprise Agreement 2022 (Agreement). The application was made by Port of Portland Pty Limited T/A Port of Portland (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.3 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

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

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 August 2022. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Fair Work Commission, led by Commissioner Matheson, was presented with an application to approve the Port of Portland Pty Ltd Enterprise Agreement 2022. This was submitted by Port of Portland Pty Limited T/A Port of Portland, in accordance with section 185 of the Fair Work Act 2009. The proposed agreement is a single enterprise agreement between the employer and employees within the port authorities sector. The Commission had to decide whether certain provisions within the agreement were consistent with the National Employment Standards (NES), and whether the employer's undertakings would result in financial detriment to employees or substantial changes to the agreement.

The Commission observed that some provisions in the agreement might not align with the NES; however, the agreement included a clause that ensured the more beneficial NES entitlements would prevail in cases of inconsistency. The employer had provided written undertakings to address these concerns. The Commission sought and received views from bargaining representatives for the agreement, and none of them objected to the undertakings. The Commission was satisfied that the undertakings would not result in financial detriment to employees or substantial changes to the agreement.

Pursuant to section 190(3) of the Act, the Commission accepted the employer's undertakings. The Commission also found that the agreement met all relevant requirements outlined in sections 186, 187, 188, and 190 of the Act. Additionally, the Construction, Forestry, Maritime, Mining and Energy Union, as a bargaining representative, requested that the agreement cover it. The Commission noted that the agreement would indeed cover the organisation as per section 201(2) of the Act. Therefore, the agreement was approved and would take effect from 30 August 2022, with a nominal expiry date of 30 June 2026.

Port of Portland Pty Limited T/A Port of Portland

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established