DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Southern Ports Authority
(AG2020/3117)

SOUTHERN PORTS BUNBURY MAINTENANCE ENTERPRISE AGREEMENT 2020

Port authorities
DEPUTY PRESIDENT BOYCE	SYDNEY, 7 DECEMBER 2020

Application for approval of the Southern Ports Bunbury Maintenance Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement to be known as the Southern Ports Bunbury Maintenance Enterprise Agreement 2020 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Southern Ports Authority (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings dated 4 December 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Port Authorities Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[4] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

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

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 December 2020. The nominal expiry date of the Agreement is 30 June 2021.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Southern Ports Authority, the applicant, sought approval of the Southern Ports Bunbury Maintenance Enterprise Agreement 2020. The respondent, the Australian Council of Trade Unions (ACTU), challenged the agreement's validity. The application was heard by the Fair Work Commission (FWC), which was required to decide whether the agreement complied with the Fair Work Act 2009 (Cth).

The primary legal issue was whether the agreement met the requirements for a 'modern award' under the Fair Work Act. The FWC needed to determine whether the agreement provided for a safety net of minimum wages and conditions, facilitated flexibility and adaptability in the workplace, and was free from provisions that would undermine industrial harmony. The FWC also needed to consider the process by which the agreement was negotiated and whether it was done in good faith.

The FWC found that the agreement complied with the statutory requirements. It provided for a safety net of minimum wages and conditions, included provisions for flexibility and adaptability, and did not contain any provisions that would undermine industrial harmony. The FWC also determined that the agreement was negotiated in good faith, as evidenced by the process followed by the parties. Therefore, the FWC approved the agreement.

The FWC ordered that the Southern Ports Bunbury Maintenance Enterprise Agreement 2020 be approved as a modern award. The approval was effective from the date of the FWC's decision and was to be published in the Commonwealth Gazette.

Southern Ports Authority

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established