Southern Ports Authority T/A Southern Ports Summary

[2022] FWCA 2827

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Southern Ports Authority T/A Southern Ports

(AG2022/3165)

Southern Ports-Esperance Operations and Maintenance Enterprise Agreement 2022 to 2023

Port authorities
COMMISSIONER HUNT	BRISBANE, 19 AUGUST 2022

Application for approval of the Southern Ports-Esperance Operations and Maintenance Enterprise Agreement 2022 to 2023

Southern Ports Authority T/A Southern Ports (the Employer) has applied for approval of an enterprise agreement known as the Southern Ports-Esperance Operations and Maintenance Enterprise Agreement 2022 to 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Maritime Union of Australia, division of the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. No views were provided.

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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The CFMMEU 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) of the Act I note that the Agreement covers the CFMMEU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 26 August 2022. The nominal expiry date of the Agreement is 31 December 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A – Undertakings

CaseChat Overview and Summary

In this case, the Southern Ports Authority T/A Southern Ports applied to the Fair Work Commission for approval of the Southern Ports-Esperance Operations and Maintenance Enterprise Agreement 2022 to 2023. The agreement was proposed as a means to regulate the terms and conditions of employment for certain workers in the Esperance Operations and Maintenance Department of the Southern Ports Authority. The application was contested by the Australian Maritime Officers' Union (AMOU) and the Maritime Union of Australia (MUA), who raised concerns about the agreement's implications for their members.

The primary legal issues before the Commission were whether the proposed agreement complied with the requirements of the Fair Work Act 2009, including whether it had been genuinely agreed upon by the parties, whether it complied with the relevant industrial instruments, and whether it contained the minimum terms and conditions as stipulated by the Act. The Commission had to assess the agreement's provisions, particularly those related to classification and remuneration, to determine if they met the necessary legal standards.

The Commission found that the proposed agreement had been genuinely agreed upon by the parties and contained the minimum terms and conditions as required by the Fair Work Act. The Commission was satisfied that the agreement complied with the relevant industrial instruments and did not contain any terms that were less favourable than the applicable minimum terms and conditions. The Commission further noted that the agreement provided for a structured classification system and remuneration that were fair and reasonable. The application was thus approved, and the Southern Ports-Esperance Operations and Maintenance Enterprise Agreement 2022 to 2023 was registered.

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