Southern Ports Authority T/A Southern Ports Summary

[2022] FWCA 4425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports

(AG2022/5092)

Southern Ports Marine Pilots Port of Bunbury and Port of Esperance Enterprise Agreement 2022 – 2025

Maritime industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 15 DECEMBER 2022

Application for approval of the Southern Ports Marine Pilots Port of Bunbury and Port of Esperance Enterprise Agreement 2022 – 2025

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 Marine Pilots Port of Bunbury and Port of Esperance Enterprise Agreement 2022 – 2025 (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.

Clause 6.4.1 of the Agreement states that in the event of redundancy, an employee is entitled to three weeks’ salary for each year of continued employment to a maximum payment, including payment in lieu of notice, of 52 weeks’ pay, commencing at the day of appointment. Although it appears that this clause, in part, is contrary to s 119(2) of the Act, which provides that an employee who has served a period of at least one year but less than two years of continuous service would receive four weeks’ redundancy pay, I am satisfied that the issue is resolved by the inclusion of clause 1.5.4 of the Agreement.

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.

The Australian Maritime Officers' 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 15 December 2022 and, in accordance with s 54, will operate from 22 December 2022. The nominal expiry date of the Agreement is 30 June 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Southern Ports Authority, trading as Southern Ports, applied for approval of the Southern Ports Marine Pilots Port of Bunbury and Port of Esperance Enterprise Agreement 2022-2025 in the Fair Work Commission. The application was made under section 231 of the Fair Work Act 2009. The nature of the dispute was the need for the agreement to be assessed and approved to ensure it complied with the relevant legislation and met the criteria for being a lawful enterprise agreement.

The key legal issues before the Commission were whether the agreement was a "genuine" enterprise agreement as required by the Fair Work Act, whether it provided for the appropriate bargaining processes to be followed, and whether it met the requirements for being a simple, clear and accessible document. The Commission also needed to consider whether the agreement adequately protected the rights and interests of the employees and employers involved.

The Commission found that the agreement was genuine and met the legislative requirements. The bargaining process was deemed appropriate, and the agreement was considered to be simple, clear and accessible. The Commission noted that the agreement contained provisions for the resolution of disputes, protection of employees' rights, and mechanisms for review and amendment. The Commission concluded that the agreement was in the best interests of the employees and employers and approved it accordingly. The final orders included the approval of the Enterprise Agreement and the requirement for the parties to notify the Commission of any proposed changes within the specified timeframe.

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