Qube Ports Pty Ltd - [2023] FWC 508

[2023] FWC 508

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.217—Enterprise agreement

Qube Ports Pty Ltd

(AG2022/4849)

Stevedoring industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 1 MARCH 2023

Application under s 217 to remove ambiguity or uncertainty – jurisdictional objection – employer not covered by agreements when application made – no standing to make application – application dismissed

This decision concerns a jurisdictional objection raised by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) to an application made by Qube Ports Pty Ltd (Qube) to vary a number of enterprise agreements under s 217 of the Fair Work Act 2009 (FW Act). The CFMMEU contends that the application is incompetent because Qube was not an employer covered by the relevant agreements when its application was made, and therefore had no standing to make the application. Qube acknowledges that it was not covered by the agreements at that time because they had been superseded and had ceased to operate. It contends however that s 217 allows an application to be made by an employer that is or was covered by the relevant agreement. At a mention on 8 December 2022, I determined that the CFMMEU’s objection would be heard as a threshold matter. The parties subsequently filed written submissions in accordance with my directions.

It is convenient briefly to summarise the background to this matter. In 2012 and 2013, the Commission approved under s 185 of the FW Act sixteen enterprise agreements that covered Qube and employees engaged as waterside workers at ports around Australia. These agreements are listed in annexure A to Qube’s application and are referred to as the ‘2012 agreements’.

From 2016 to 2018, the Commission approved seventeen enterprise agreements that replaced the 2012 agreements (‘replacement agreements’). These instruments covered all of the employees who had been covered by the 2012 agreements. As a consequence, the 2012 agreements ceased to apply to those employees (see s 58(2)(e)). Further, from the day on which there were no employees to whom the 2012 agreements applied, they ceased to operate (see s 54(2)). In addition to the replacement agreements that were made from 2016 to 2018, new enterprise agreements were made at the ports of Esperance and Ashburton (‘new port agreements’). The replacement agreements and the new port agreements are set out in annexure B to Qube’s application and are referred to in the application as the ‘2016 agreements’.

In 2021, the Commission approved enterprise agreements which replaced each of the 2016 agreements and covered all of the relevant employees (‘2021 agreements’). The 2016 agreements ceased to apply to the employees, and ceased operate, in the same manner as the 2012 agreements. It is common ground between the parties that all of the 2012 agreements and 2016 agreements have ceased to operate because of the effect of s 54(2).

Qube’s application seeks to vary each of the 2012 and 2016 agreements to remove ambiguity or uncertainty from a number of clauses. The 2012 and 2016 agreements had a similar structure. They…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Qube Ports Pty Ltd [2023] FWC 508
Case: [2023] FWC 508
Decision Date: 1 MARCH 2023

CaseChat Overview and Summary

The matter involved an application by Qube Ports Pty Ltd (Qube) to vary a number of enterprise agreements under s 217 of the Fair Work Act 2009 (FW Act). The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) objected to the application on jurisdictional grounds, arguing that Qube was not covered by the relevant agreements at the time the application was made and therefore had no standing to make it. Qube argued that s 217 allowed an employer to make an application to vary an agreement even if it was not covered by it at the time the application was made, provided it had been covered by it at some point. The central issue before the Court was the interpretation of s 217(1) of the FW Act, which allows an employer covered by an enterprise agreement to apply to the Commission to vary the agreement to remove ambiguity or uncertainty. The Court found that the words ‘covered by the agreement’ in s 217(1) did not encompass past coverage of an agreement. An employer must be covered by the agreement at the time of the application in order to have standing to make the application. The Court rejected Qube's argument that s 217(1) was a standing provision that was not concerned with questions of time. The Court found that the text and context of s 217(1) indicated that the temporal context of the sentence was the time of the application. The Court concluded that Qube did not have standing to make the application, and therefore the Commission had no power to determine it. The application was dismissed.

Orders