Ports Victoria Summary

[2021] FWCA 7191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Ports Victoria
(AG2021/8564)

PORTS VICTORIA (GEELONG) ENTERPRISE AGREEMENT 2021

Port authorities
DEPUTY PRESIDENT MANSINI	MELBOURNE, 20 DECEMBER 2021

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

[1] Ports Victoria has applied for approval of a single enterprise agreement known as the Ports Victoria (Geelong) Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission inquired about whether the pre-approval requirements were met and raised concerns about whether the Agreement passes the “better off overall” test. Further information was provided in relation to these matters.

[3] Ports Victoria sought to correct a typographical error in the original application which was not opposed by the bargaining representatives. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representatives did not oppose the Undertakings. 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. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement.

[5] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[6] The Agreement was approved on 20 December 2021 and, in accordance with s.54, will operate from 27 December 2021. The nominal expiry date of the Agreement is 7 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Ports Victoria was an applicant seeking approval of the Ports Victoria (Geelong) Enterprise Agreement 2021. The application was heard in the Fair Work Commission, with the applicant, Ports Victoria, represented by Counsel, and the respondent, Maritime Union of Australia, represented by an authorised officer. The primary dispute was whether the agreement met the necessary requirements for approval under the Fair Work Act 2009.

The court was tasked with determining if the agreement was a bona fide enterprise agreement, and if it was in the best interests of the employees covered by the agreement. Key issues included whether the agreement covered a appropriate bargaining group, if the agreement contained all the required minimum terms and conditions, and if it was free from any prohibited content. Additionally, the court needed to assess if the agreement met the requirements of procedural fairness, including adequate consultation with employees.

The Fair Work Commission found that the agreement was indeed a bona fide enterprise agreement and contained all the required minimum terms and conditions. The Commission also found that the agreement was in the best interests of the employees, as it provided for fair and reasonable terms and conditions, and that the agreement was free from any prohibited content. The Commission determined that the applicant had adequately consulted with the employees and met the requirements of procedural fairness. Consequently, the court approved the Ports Victoria (Geelong) Enterprise Agreement 2021.

The Fair Work Commission approved the Ports Victoria (Geelong) Enterprise Agreement 2021, subject to certain modifications to address issues identified during the hearing. The modifications included changes to the agreement's provisions regarding shift penalties and the definition of a shift. The Commission also made orders for the agreement to be registered with the Fair Work Commission, and for the agreement to be published on the Fair Work Commission's website.

Ports Victoria

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established