Qube Ports Pty Ltd t/a Qube Ports and Bulk

[2021] FWCA 6529

[2021] FWCA 6529

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Qube Ports Pty Ltd t/a Qube Ports and Bulk
(AG2021/7312)

QUBE PORTS PTY LTD SOUTH AUSTRALIAN OUTPORTS ENTERPRISE AGREEMENT 2020

Stevedoring industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 4 NOVEMBER 2021

Application for approval of the Qube Ports Pty Ltd South Australian Outports Enterprise Agreement 2020

[1] Qube Ports Pty Ltd has applied for approval of a single enterprise agreement known as the Qube Ports Pty Ltd South Australian Outports Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made, and do so pursuant to s.586(b).

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

[4] The Agreement was required to be filed within 14 days after it was made on 8 August 2021, in accordance with s.185(3). As the Agreement was not filed until 7 September 2021, it was filed after the expiry of the statutory timeframe. Qube Ports Pty Ltd submitted that its delay in filing was due to an administrative oversight. The Agreement was approved by 14 of 15 employees that cast a valid vote and of the 17 employees covered by the Agreement at the time of the vote. The bargaining representative supported the request to extend the time for lodgement. In all of the circumstances, and in accordance with s.185(3)(b), I consider it fair to extend the period within which the application must be made to 7 September 2021.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative 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.

[6] 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.

[7] The Construction, Forestry, Maritime, Mining and Energy Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[8] The Agreement was approved on 4 November 2021 and, in accordance with s.54, will operate from 11 November 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

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Annexure A