Qube Ports Pty Ltd T/A Qube Ports & Bulk

[2017] FWCA 2935

[2017] FWCA 2935

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Qube Ports Pty Ltd T/A Qube Ports & Bulk
(AG2017/1524)

QUBE PORTS PTY LTD PORT OF ADELAIDE ENTERPRISE AGREEMENT 2016

Stevedoring industry
COMMISSIONER LEE	MELBOURNE, 30 MAY 2017

Application for approval of the Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the Qube Ports Pty Ltd Port of Adelaide Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Qube Ports Pty Ltd T/A Qube Ports & Bulk (the Applicant). The Agreement is a single enterprise agreement.

[2] On 3 May 2017 The Maritime Union of Australia (MUA) lodged a Form F18 – Statutory Declaration objecting to the approval of the enterprise agreement. On 10 May 2017 the Fair Work Commission (the Commission) wrote to the Applicant advising that the Agreement lodged with the application documentation had not been signed by at least 1 representative of the employees covered by the Agreement pursuant s.185(2)(a) of the Act and Regulation 2.06A of the Fair Work Regulations 2009. On 12 May 2017 the Applicant’s representative filed an outline of submissions in relation to the issue and requested an opportunity to be heard.

[3] The matter was listed for hearing before me on 25 May 2017 by video-link to Sydney and Adelaide. Ms Millen was granted permission to appear for the Applicant and Ms Doust was granted permission to appear for The Maritime Union of Australia as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[4] The MUA indicated at the hearing that it is their contention that during the course of bargaining for the Agreement there was to be what is referred to by the parties as an establishment clause in the Agreement and that it was omitted from the document that was circulated to employees. However, it was the understanding of the MUA, as a bargaining representative for the Agreement, that such a clause would in fact have been included. It is conceded by the Applicant that the clause was omitted, and to that extent, this is an issue that goes to whether or not there is genuine agreement and on the basis of the submissions made by the parties I have a concern as to whether or not there was genuine agreement.

[5] The parties agree that my concern on that score can be dealt with by way of an undertaking which has been proffered. The undertaking relevantly sets out that Part B of the Agreement will include a new clause 9.0, which is an establishment clause. The submissions from both parties is that if I am to accept this as an undertaking, that would deal with the issue about whether or not there was a genuine agreement, and I agree with those submissions. The Applicant 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.

[6] 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.

[7] 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.

[8] The Maritime Union of Australia 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 June 2017. The nominal expiry date of the Agreement is 30 June 2020.

COMMISSIONER

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ANNEXURE A