Qube Ports Pty Ltd T/A Qube Ports

[2023] FWCA 4433

[2023] FWCA 4433[Note: An appeal pursuant to s.604 (C2024/491) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Qube Ports Pty Ltd T/A Qube Ports

(AG2023/4168)

QUBE PORTS PTY LTD BRISBANE BULK AND GENERAL ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 21 DECEMBER 2023

Application for approval of the Qube Ports Pty Ltd Brisbane Bulk and General Enterprise Agreement 2023

Introduction

1. Qube Ports Pty Ltd T/A Qube Ports (the Employer) has made an application for approval of an enterprise agreement known as the Qube Ports Pty Ltd Brisbane Bulk and General Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was before 6 June 2023, on 5 October 2022. Accordingly, the pre-6 June 2023 genuine agreement provisions apply to this Agreement.

1. Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. The Agreement was made after 6 June 2023, on 23 October 2023. Accordingly, the better off overall test requirements prescribed by the Amending Act apply to this Agreement.

Notice of Employee Representational Rights (NERR)

1. The NERR was erroneous in that the name of the proposed enterprise agreement was incorrect. The Employer provided submissions that this matter constituted a minor technical error.

1. I am satisfied having regard to those submissions and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others,[1] that these matters constituted minor technical or procedural errors for the purposes of s.188(2)(a) of the Act as it was prior to 6 June 2023, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

Approval requirements

1. The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

National Employment Standards precedence term in Clause 3.4 of the Agreement

1. The Agreement contains a number of clauses which may be inconsistent with the National Employment Standards (NES).

1. Clause 22 of the Agreement provides for employees’ entitlement to compassionate leave where a member of an employee’s immediate family or household contracts or develops a serious illness or sustains a serious injury or dies. However, it is silent in relation to compassionate leave for stillbirth/miscarriage as is provided by s.104(1)(b) and (c) of the Act.

1. Clause 24.3 of the Agreement provides that employees will be entitled of up to 5 days unpaid family and domestic violence leave, which is inconsistent with s.106A(1) of the Act which allows up to 10 days of paid family and domestic violence leave.

1. I note that in accordance with the NES precedence term in Clause 3.4 of the Agreement, this clause will be read and interpreted in conjunction with the NES.

Section 190 Undertakings

1. The employer 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.

Section 186, 187, 188 and 190

1. 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.

Section 183 Bargaining Representatives

1. The United Workers’ Union (UWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the UWU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 28 December 2023. The nominal expiry date of the Agreement is 31 December 2025.

DEPUTY PRESIDENT

ANNEXURE A

[1] [2019] FWCFB 318.

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