Southern Ports Authority T/A Southern Ports

[2025] FWCA 392

[2025] FWCA 392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports

(AG2024/5158)

SOUTHERN PORTS ADMINISTRATION AND SPECIALIST SERVICES AGREEMENT

Port authorities
COMMISSIONER LIM	PERTH, 31 JANUARY 2025

Application for approval of the Southern Ports Administration and Specialist Services Agreement

1. Southern Ports Authority T/A Southern Ports (the Applicant) has made an application for the approval of an enterprise agreement known as the Southern Ports Administration and Specialist Services Agreement (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement. 

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which 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 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 19 May 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met. 

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES): 

a)Clause 38.6 appears to provide that in the case of termination, if employees do not give the required notice, the Employer may withhold from any monies due an amount equivalent to the notice not provided. This clause does not appear to limit the source of monies which may be deducted. The effect of this is that this clause appears to permit the employer to withhold monies owing to the employee under the NES.

b)Clause 8.6 of the agreement provides that, “Where an Employee fails to notify the Employer after being absent for more than 72 hours, the Employer may consider that they have abandoned their employment. The Employer will make reasonable attempts to contact such an Employee, however where contact can’t be made or contact is made however no satisfactory explanation is provided for the absence and failure to notify, the Employer may take disciplinary action up to and including termination of employment.” – it does not appear to be clear when notice of termination would take effect.

1. However, I am satisfied that under clause 4.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. 

1. The model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

1. The Construction, Forestry and Maritime Employees Union – Maritime Union of Australia Division (CFMEU) and The Australian Maritime Officers’ Union (AMOU) (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement. 

1. The Agreement was approved on 31 January 2025 and, in accordance with s 54, will operate from 7 February 2025. The nominal expiry date of the Agreement is 31 January 2028. 

COMMISSIONER

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