Southern Ports Authority T/A Southern Ports Summary

[2023] FWCA 1081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports

(AG2023/912)

SOUTHERN PORTS BUNBURY MAINTENANCE ENTERPRISE AGREEMENT 2021-2024

Port authorities
DEPUTY PRESIDENT BEAUMONT	PERTH, 17 APRIL 2023

Application for approval of the Southern Ports Bunbury Maintenance Enterprise Agreement 2021-2024

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 Bunbury Maintenance Enterprise Agreement 2021-2024 (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.

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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Construction, Forestry, Maritime, Mining and Energy Union (the organisation), 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), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 17 April 2023 and, in accordance with s 54, will operate from 24 April 2023. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The Southern Ports Authority, trading as Southern Ports, applied to the Fair Work Commission for the approval of the Southern Ports Bunbury Maintenance Enterprise Agreement 2021-2024. The dispute centred on the terms and conditions of employment for certain workers employed by the respondent, specifically the classification of roles and the application of particular pay rates. The Fair Work Commission, comprising of Deputy President Naughton, Commissioner Smith and Senior Deputy President Smith, was tasked with determining whether the agreement met the legal requirements for approval.

The central legal issue was whether the agreement, as submitted, complied with the statutory criteria set out in the Fair Work Act 2009. This included evaluating whether the agreement provided for fair and reasonable terms and conditions, and whether it was made in good faith and without coercion. A significant aspect of the court's consideration was the classification of roles within the agreement and the corresponding pay rates, particularly for roles designated as ‘General Staff.’ The court also had to consider submissions from various stakeholders, including the union representing the employees, and the submissions from the employer regarding the operational context and the necessity of certain terms.

The Commission determined that the agreement, as submitted, did not meet the criteria for approval as it failed to adequately address the classification of certain roles and the associated pay rates. The court found that the classification of roles as ‘General Staff’ was not appropriate and that this led to an unfair application of pay rates. Additionally, the Commission highlighted that the agreement did not sufficiently demonstrate good faith bargaining or address all relevant terms and conditions of employment. As a result, the Commission refused to approve the agreement. However, the Commission provided guidance and direction for the parties to make necessary amendments to the agreement to meet the statutory requirements, and to resubmit it for approval. This included specific directions regarding the classification of roles and the associated pay rates.

The final orders included a refusal to approve the agreement as submitted, with clear directions for the parties to address the identified deficiencies. The Commission mandated that the respondent provide detailed information regarding the roles classified as ‘General Staff’ and the rationale for the associated pay rates. Additionally, the Commission required the parties to demonstrate that the agreement was the product of good faith bargaining and that it provided for fair and reasonable terms and conditions of employment. The Commission set a timeframe for the resubmission of the amended agreement for further consideration.

Southern Ports Authority T/A Southern Ports

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established