Southern Ports Authority T/A Southern Ports

[2018] FWCA 2466

[2018] FWCA 2466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports
(AG2018/1484)

SOUTHERN PORTS AUTHORITY - ESPERANCE OPERATIONS AND MAINTENANCE ENTERPRISE AGREEMENT 2018-2020

Stevedoring industry
DEPUTY PRESIDENT BULL	SYDNEY, 10 MAY 2018

Application for approval of the Southern Ports Authority - Esperance Operations and Maintenance Enterprise Agreement 2018-2020 - Agreement negotiated under the Commission’s New Approaches framework, Agreement approved

[1] An application has been made to the Fair Work Commission (the Commission) by Southern Ports Authority (the applicant) for the approval of an enterprise agreement known as the Southern Ports Authority - Esperance Operations and Maintenance Enterprise Agreement 2018 – 2020 (the Agreement).

[2] The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[3] The Agreement replaces the Southern Ports Authority – Port of Esperance Operations and MUA Enterprise Agreement 2014/17.

[4] The Agreement applies to employees employed by Southern Ports Esperance in the classifications contained in the Agreement which relate to Port Operations and Maintenance.

[5] At the time of voting for the Agreement there were 75 employees covered by the Agreement. Of those employees, 46 cast valid votes with 38 voting to approve the Agreement.

[6] As per the requirement under s.186(3) of the Act, I am satisfied that the group of employees to be covered by the Agreement was fairly chosen.

Interest Based Bargaining (IBB)

[7] Following a recommendation contained in the Report of the Fair Work Act Review Panel in 2012, an amendment to the Act bestowed on the Fair Work Commission an additional function: ‘Promoting cooperative and productive workplace relations and preventing disputes’. 1

[8] Following this amendment to the Act, the Commission’s President, after consultation with relevant stakeholders, endorsed a ‘New Approaches’ strategy to give effect to this new function. New Approaches shifts the focus of the Commission’s role from resolving disputes to supporting parties to transform their workplace relations to facilitate change collaboratively, foster innovation and drive productivity improvement.

[9] The applicant in respect of its Esperance Port operation and the Maritime Union of Australia (MUA) as the default bargaining representative, together with an employee bargaining representative committed to adopting an interest based bargaining approach to negotiations for the Agreement. This commitment was provided following IBB training conducted by the Commission. The training was conducted jointly with the applicant, the MUA bargaining representative other MUA employee representatives and the employee bargaining representative.

[10] Following a recent amalgamation the MUA is now a division of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU)

[11] Following the IBB training the parties identified their individual and shared interests in the enterprise negotiation process.

[12] The applicant identified its interest in having a harmonious workplace through mutual trust and relationship building with a focus on health and safety. It had a requirement to work within the parameters of the WA government wages policy and provide competitive pricing for its stevedoring operations. This could be achieved through increasing the capability and flexibility of its workforce and undertaking workforce planning to meet work availability.

[13] The employees on the negotiating committee and their bargaining representatives identified their interests as including job security, income stability and work life balance. Being able to provide input into operations and being valued as employees were also expressed as interests in the negotiation process. Like the applicant, the employees also sought a harmonious workplace. The employees also identified their interest in maintaining industry standards in respect to wages and conditions and for their employer to remain a Government body.

[14] The Commission provided assistance to the parties during the negotiations for the Agreement. A cooperative approach and significant level of commitment to the negotiations was demonstrated by the MUA bargaining representative and employee representatives that comprised the bargaining committee. Southern Port management representatives exhibited a similar approach to the negotiations which enabled the Agreement to be reached in a timely manner without rancour.

Better off overall test

[15] The Commission is required to be satisfied that each employee would pass the better off overall test (BOOT) under the Agreement as compared to the relevant Award. Section 193(1) of the Act states:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.”

[16] The approach to applying the BOOT was stated by a decision of the Full Bench in Armacell Australia Pty and Others 2:

“The BOOT, as the name implies, requires an overall assessment to be made. This requires identification of terms which are more beneficial for an employee, terms which are less beneficial and an overall assessment of whether an employee would be better off under the agreement…”

[17] As such the application of the BOOT is an all-embracing and comprehensive test requiring the identification of the terms which are more beneficial and those which are less beneficial for an employee. An overall assessment as to whether an employee would be better off under the Agreement is then undertaken by the Commission.³

[18] The applicant states that the Stevedoring Industry Award 2010 (the Award) is the relevant reference instrument for the purposes of the BOOT as required under s.186 of the Act. 4

[19] The terms and conditions under the Agreement are stated to be more beneficial than the Award. These terms and conditions include:

• higher rates of pay;
• higher redundancy rates;
• 12 weeks paid maternity leave; and
• 13 weeks long service leave after 10 years of service.

[20] As per the Western Australian State Government wages policy employees will receive a $1,000 increase per annum applied to each classification level. The increase will be applied differently depending on an employee’s classification level. That is, the increase will be in the form of a lump sum payment with the hourly rates remaining constant or paid as an annual salary increase. The details are reflected in clause 10.3 of the Agreement.

[21] The applicant’s Statutory Declaration (Form F17) states that there are no terms or conditions under the Agreement that are less beneficial than the Award.

[22] It is submitted by the applicant that employees are better off under the Agreement than the Award. The MUA (CFMMEU) has filed a statutory declaration (Form F18) stating that it supports the approval of the Agreement and agrees with the statutory declaration filed by the applicant.

[23] Taking into account the substantially higher base rates of pay and the other identified beneficial provisions and entitlements under the Agreement for all classifications and accepting that there are no terms or conditions of the Agreement that are less beneficial than the Award, I am satisfied that each Award covered employee and each prospective Award covered employee would be better off overall if the Agreement applied to the employee.

NERR

[24] Pursuant to s.173 of the Act the employer of a proposed enterprise agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who will be covered by the Agreement following agreement to or initiation of bargaining (the notification time). The notification must be in the form of a notice of employee representational rights (NERR) and is required to be provided to employees as soon as practical but no later than 14 days after the notification time.

[25] The applicant’s statutory declaration indicated a period greater than 14 days had elapsed between the notification time and the time the NERR was provided to employees. In response to the Commission raising this issue the applicant confirmed that the NERR had in fact been provided to employees within the 14 day statutory timeframe however the NERR was sent out for a second time at a later date following a pause in negotiations while a voluntary redundancy process was considered. It was this later date that had been listed in the applicant’s statutory declaration. The Commission is thus satisfied that the applicant has complied with s.173(3) of the Act.

Explanation of the Agreement

[26] Section 186 of the Act sets out a number of general requirements for approval of an enterprise agreement, one of which is that an employer must ‘take all reasonable steps’ to ensure that the terms of the agreement and the effect of those terms are explained to the relevant employees. 5 A failure to comply with this pre-approval requirement will preclude the proposed agreement from being an agreement capable of being approved by the Commission.6

[27] Having regard to the consultation process set out in the applicant’s statutory declaration, including the memorandum sent to all employees on 23 March 2018, the Commission is satisfied that all reasonable steps as per s.180(5) were taken to explain the terms of the Agreement to employees.

[28] Section 180(3) of the Act requires the employer to take all reasonable steps to notify the relevant employees of the time and place at which the vote will occur and the voting method to be used. The applicant has clarified that this occurred on 23 March 2018, where the required details were included in the memorandum sent to all employees.

[29] 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.

[30] The applicant’s Form F17 Statutory Declaration in support of the application was incorrectly signed when filed. On bringing this to the attention of the applicant a correctly signed Statutory Declaration was provided by the applicant on 10 May.

[31] The MUA was an employee organisation involved in the Agreement making process as a bargaining representative. As noted earlier in this decision, The CFMMEU has filed a statutory declaration stating that it supports the approval of the Agreement and agrees with the matters contained in the employer’s statutory declaration. The CFMMEU has stated that it wishes to be covered by the Agreement and in accordance with s.201(2) of the Act, I note that the Agreement covers the CFMMEU.

[32] The Agreement is approved.

[33] In accordance with s.54(1)(a) of the Act, the Agreement will commence operation 7 days after Commission approval of the Agreement.

[34] The nominal expiry date of the Agreement is 31 December 2020.

DEPUTY PRESIDENT

 1   s.576(2)(aa)

 2   [2010] FWAFB 9985 at [41]

3 See also AKN Pty Ltd t/a Aitkin Crane Services [2015] FWCFB 1833; National Tertiary Education Union v University of New South Wales[2011] FWAFB 5163; Solar Systems Pty Ltd [2012] FWAFB 6397

 4   Form F17 at 3.1

 5   S.186(2)(a) requires ‘genuine agreement’ which is defined in s.188(a)(1) and requires compliance with s.180(5) which requires an employer to take all reasonable steps to explain the terms of the Agreement and their effect

 6   Construction, Forestry, Mining and Energy Union v One Key Workforce Pty Ltd [2017] FCA 1266 Flick J at [91]

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