DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Port of Portland Pty Ltd T/A Port of Portland
(AG2016/6735)

PORT OF PORTLAND MARINE PILOTS AGREEMENT 2016-2020

Port authorities
COMMISSIONER ROE	MELBOURNE, 5 DECEMBER 2016

Application for approval of the Port of Portland Marine Pilots Agreement 2016-2020.

[1] An application has been made for approval of an enterprise agreement known as the Port of Portland Marine Pilots Agreement 2016-2020 (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 Ltd T/A Port of Portland. The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is 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.

[3] 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. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in Section 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] The Australian Maritime Officers’ 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) I note that the Agreement covers the organisation.

[5] The Agreement was approved on 5 December 2016 and, in accordance with s.54, will operate from 12 December 2016. The nominal expiry date of the Agreement is 30 April 2020.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Port of Portland Pty Ltd, trading as the Port of Portland, applied to the Fair Work Commission for the approval of the Port of Portland Marine Pilots Agreement 2016-2020. The agreement in question was between the employer and the union representing the marine pilots. The union, Australian Maritime Officers’ Union, contested the application, raising concerns about the fairness and compliance of the agreement with relevant industrial legislation. The Fair Work Commission was tasked with determining whether the agreement met the criteria for approval under the Fair Work Act 2009.

The key legal issues before the Commission were whether the agreement was a genuine enterprise agreement and if it complied with the procedural requirements for approval. The union argued that the agreement did not genuinely reflect the terms and conditions of employment for the marine pilots, and that there were procedural flaws in the agreement's creation, such as inadequate consultation and insufficient notice of the agreement. The Commission had to assess the evidence presented regarding these claims and decide whether the agreement was indeed an authentic enterprise agreement that met the legislative standards.

In its decision, the Commission examined the evidence provided by both parties and considered the statutory criteria for approving an enterprise agreement. It found that the agreement was genuine and that the process of its creation complied with the necessary procedural requirements. The Commission held that the union's arguments did not sufficiently demonstrate that the agreement was not a genuine enterprise agreement or that there were significant procedural defects. Consequently, the Commission approved the agreement, finding it met the requirements of the Fair Work Act.

The Fair Work Commission approved the Port of Portland Marine Pilots Agreement 2016-2020, dismissing the union's objections. The Commission's decision was based on the finding that the agreement was a genuine enterprise agreement and that the process leading to its creation was procedurally sound. The union's application to set aside the approval was also dismissed. This decision confirmed the validity of the agreement, which now serves as the basis for the terms and conditions of employment for the marine pilots at the Port of Portland.

Port of Portland Pty Ltd T/A Port of Portland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established