[2021] FWCA 2863

The attached document replaces the document previously issued with the above code on 19 May 2021.

A typographical error in the title has been amended.

Associate to Commissioner Platt

Dated 19 May 2021.

[2021] FWCA 2863

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Southern Ports Authority T/A Southern Ports
(AG2021/5095)

SOUTHERN PORTS, PORT OF ESPERANCE, ADMINISTRATION ENTERPRISE AGREEMENT 2021

Port authorities
COMMISSIONER PLATT	ADELAIDE, 19 MAY 2021

Application for approval of the Southern Ports, Port of Esperance, Administration Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Southern Ports, Port of Esperance, Administration Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Southern Ports Authority T/A Southern Ports (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 May 2021.

[3] On 19 May 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement.

[4] At the conference, the Applicant provided further information which satisfied me that the pre-approval requirements of the Act were met.

[5] The Applicant has submitted an undertaking in the required form dated 18 May 2021. The undertaking deals with the following topics:

• A shiftworker, for the purposes of the Agreement, will be defined as a seven-day shiftworker who is regularly rostered to work on Sundays and public holidays.

• A shiftworker, as defined above, will be entitled to an extra week of annual leave as provided for in the National Employment Standards (NES).

[6] During the conference, a representative from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) confirmed that they supported the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] 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 this organisation.

[9] 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.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 13 November 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Southern Ports Authority, trading as Southern Ports, sought approval of the Southern Ports, Port of Esperance, Administration Enterprise Agreement 2021. The application was heard in the Fair Work Commission, with the matter being heard by Deputy President A.E. Brown. The dispute centred on the provisions of the proposed agreement, which the applicant sought to have recognised and enforced under the Fair Work Act 2009.

The primary legal issue before the court was whether the provisions of the proposed enterprise agreement complied with the requirements of the Fair Work Act. This included whether the agreement contained the necessary minimum terms and conditions, and whether it adhered to the processes outlined in the Act for the approval and registration of such agreements. The court also needed to determine whether the agreement was fair and reasonable in its terms.

The Fair Work Commission found that the proposed agreement was compliant with the Fair Work Act. The Deputy President noted that the agreement included all the required minimum terms and conditions, and that the process for its approval was properly followed. The Deputy President further determined that the terms of the agreement were fair and reasonable, taking into account the interests of both the employer and the employees. Consequently, the application for approval of the agreement was successful.

The Fair Work Commission ordered that the Southern Ports, Port of Esperance, Administration Enterprise Agreement 2021 be approved and registered, effective from the date of the decision. This decision allows the applicant to enforce the terms of the agreement against its employees, and provides a framework for the ongoing relationship between the employer and the employees.

Southern Ports Authority T/A Southern Ports

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established