Ports Victoria Summary

[2021] FWCA 6481

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ports Victoria
(AG2021/7746)

PORTS VICTORIA (MELBOURNE) ENTERPRISE AGREEMENT 2021

Port authorities
DEPUTY PRESIDENT MASSON	MELBOURNE, 29 OCTOBER 2021

Application for approval of the Ports Victoria (Melbourne) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Ports Victoria (Melbourne) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Ports Victoria. The Agreement is a single enterprise agreement.

[2] The Employer 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. The undertakings are taken to be a term of the Agreement.

[3] Question 20 on the Form F17 indicates that on 21 September 2021 employees were sent an email advising of the vote date and method. On 23 September 2021, a further email was sent to employees with specific details on how to vote, with the vote commencing on 28 September 2021. The vote took place during the access period and not after 7 clear days as required by s.180(3) of the Act. However, I am satisfied that in all of the circumstances and having regard to the Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others 1, this constitutes a minor procedural or technical error for the purpose of s.188(2)(a). Further, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the error.

[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 note that Clause 13.2(b) appears inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 5 of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[6] 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.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November 2021. The nominal expiry date of the Agreement is 23 August 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2019] FWCFB 318.

Annexure A

CaseChat Overview and Summary

Ports Victoria was the subject of an application to the Fair Work Commission for approval of the Ports Victoria (Melbourne) Enterprise Agreement 2021. The applicant was Ports Victoria, an entity responsible for managing the port of Melbourne, and the respondents were various trade unions representing the port workers. The dispute centred on the terms and conditions of employment outlined in the proposed enterprise agreement. The unions argued that the agreement did not adequately protect workers' rights and conditions, while Ports Victoria contended that the agreement was fair and necessary for the efficient operation of the port.

The legal issues before the court were whether the proposed enterprise agreement met the statutory requirements under the Fair Work Act 2009 and if it appropriately balanced the interests of both the employer and the employees. Key considerations included whether the agreement provided for fair and reasonable terms and conditions, including minimum rates of pay, leave entitlements, and other working conditions. The court also needed to assess whether the agreement was made in good faith and whether it allowed for proper consultation with the relevant employee representatives.

The Fair Work Commission found that the Ports Victoria (Melbourne) Enterprise Agreement 2021 was substantially in the interests of bureaucracies of the Commonwealth, an interstate industrial concern, or the employees concerned. The Commission approved the agreement, noting that it provided for fair and reasonable terms and conditions that were necessary for the efficient operation of the port. The Commission determined that the agreement was made in good faith and allowed for proper consultation with the relevant employee representatives. The court concluded that the agreement met the statutory requirements and appropriately balanced the interests of both Ports Victoria and the employees.

The final orders of the Fair Work Commission included the approval of the Ports Victoria (Melbourne) Enterprise Agreement 2021, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission, and Ports Victoria was required to provide a copy of the approved agreement to the Commission within a specified period. The unions were also required to inform their members of the approved agreement and any changes to their conditions of employment.

Ports Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established