Port Waratah Coal Services Limited T/A Port Waratah Coal Services Limited

[2022] FWCA 3763

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Port Waratah Coal Services Limited T/A Port Waratah Coal Services Limited

(AG2022/4026)

Port Waratah Coal Services Limited Enterprise Agreement 2022

Coal export terminals
DEPUTY PRESIDENT EASTON	SYDNEY, 26 OCTOBER 2022

Application for approval of the Port Waratah Coal Services Limited Enterprise Agreement 2022.

Port Waratah Coal Services Limited T/A Port Waratah Coal Services Limited (the Employer) has made an application for the approval of the Port Waratah Coal Services Limited Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

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.

I note that the Clause 13.4 – Termination of Employment and Clause 24.2(a) – Personal/Carer’s Leave are potentially inconsistent with the National Employment Standards (NES).

Noting the submissions provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES as section 56 of the Act provides that terms of a modern award or enterprise agreement contravening section 55 have no effect.

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), and Transport Workers’ Union of Australia (TWU) were bargaining representatives for the Agreement and 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 the AMWU, CEPU, CFMMEU, and the TWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 November 2022. The nominal expiry date of the Agreement is 26 October 2026

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Port Waratah Coal Services Limited T/A Port Waratah Coal Services Limited was the subject of an application before the Fair Work Commission, seeking approval of the Enterprise Agreement 2022. The dispute centred around the terms and conditions of employment for workers at the Port Waratah Coal Services facility, with the application for approval being lodged by the employer. The Fair Work Commission was tasked with determining whether the proposed agreement was in compliance with the Fair Work Act 2009 and whether it met the requirements for being a "better off overall test" (BOOT) agreement.

The legal issues before the Commission were primarily concerned with the fairness and compliance of the proposed agreement, particularly in relation to the BOOT provision. The Commission had to assess whether the agreement provided employees with a fair and reasonable outcome, taking into account various factors such as wages, conditions, and the overall balance of benefits and detriments. Additionally, the Commission considered whether the agreement contained all the necessary mandated terms and whether it adhered to the procedural requirements for enterprise agreements.

In its decision, the Fair Work Commission determined that the proposed Enterprise Agreement 2022 met the necessary requirements for approval. The Commission found that the agreement provided employees with a fair and reasonable outcome, satisfying the BOOT. It was noted that the agreement included all mandated terms and complied with the procedural requirements for enterprise agreements under the Fair Work Act 2009. The Commission approved the agreement, finding that it was in the best interests of the employees and the employer.

The Fair Work Commission approved the Port Waratah Coal Services Limited Enterprise Agreement 2022, recognising it as meeting the statutory requirements and providing a fair and reasonable outcome for employees. This approval ensures that the terms and conditions of employment for workers at the Port Waratah Coal Services facility are governed by the provisions of the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established