Southern Ports Authority T/A Southern Ports

[2022] FWCA 3988

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports

(AG2022/4336)

Southern Ports – Esperance Shift Superintendents Enterprise Agreement 2021

Port authorities
COMMISSIONER SCHNEIDER	PERTH, 14 NOVEMBER 2022

Application for approval of the Southern Ports – Esperance Shift Superintendents Enterprise Agreement 2021

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 – Esperance Shift Superintendents Enterprise Agreement 2021 (the Agreement). The application was made under section 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant has provided a written undertaking. A copy of the undertaking is attached to the Agreement. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement.

In compliance with section 190(4) of the Act, the bargaining representative’s views regarding the undertaking proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered. 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 sections 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The Australian Maritime Officers' Union (the Union), being a bargaining representative for the Agreement, has given notice under section 183 of the Act that it wants the Agreement to cover it. In accordance with section 201(2) of the Act, and based on the declaration provided by the organisation, I note that the Union is covered by the Agreement.

The Agreement is approved and, in accordance with section 54 of the Act, will operate from 21 November 2022. The nominal expiry date of the Agreement is 31 December 2024.

COMMISSIONER

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CaseChat Overview and Summary

In this case, the Southern Ports Authority, trading as Southern Ports, sought approval from the Fair Work Commission for the Southern Ports – Esperance Shift Superintendents Enterprise Agreement 2021. The matter was heard in the Commission, which is the federal workplace relations tribunal in Australia. The dispute centred around whether the proposed enterprise agreement, which sought to modify the terms and conditions of employment for shift superintendents in Esperance, complied with the requirements of the Fair Work Act 2009. Specifically, the application required the Commission to assess whether the agreement met the criteria for "protected action" and whether it was made in good faith and without coercion.

The Commission was tasked with determining whether the proposed changes in the agreement were in line with the relevant sections of the Fair Work Act, particularly focusing on the protection of employees' rights and interests. It had to consider whether the agreement was genuinely negotiated and whether it adhered to the principles of good faith bargaining. Additionally, the Commission needed to ensure that the agreement did not unfairly disadvantage any party and was consistent with the broader objectives of the Fair Work Act, which aim to create a fair and productive workplace environment.

After reviewing the submissions and evidence presented by both parties, the Fair Work Commission found that the Southern Ports – Esperance Shift Superintendents Enterprise Agreement 2021 met all the necessary legal criteria. The Commission determined that the agreement was made in good faith, without coercion, and was genuinely negotiated between the employer and the employees. It also concluded that the proposed changes were fair and reasonable, and they aligned with the overarching objectives of the Fair Work Act. Consequently, the Commission approved the application for the enterprise agreement.

The final orders of the Commission were that the Southern Ports – Esperance Shift Superintendents Enterprise Agreement 2021 be approved, effective from the date of the decision. This approval meant that the new terms and conditions outlined in the agreement would now govern the employment of shift superintendents in Esperance, subject to the provisions of the Fair Work Act and any other applicable laws.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established