Southern Ports Authority Trading AS Southern Ports

[2025] FWCA 2980

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

Southern Ports Authority Trading AS Southern Ports

(AG2025/2772)

SOUTHERN PORTS MAINTENANCE AND OPERATIONS AGREEMENT 2025

Port authorities
COMMISSIONER LIM	PERTH, 3 SEPTEMBER 2025

Application for approval of the Southern Ports Maintenance and Operations Agreement 2025.

Southern Ports Authority Trading AS Southern Ports (the Applicant) has made an application for the approval of an enterprise agreement known as the Southern Ports Maintenance and Operations Agreement 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.

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 as are relevant to this application for approval has been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 49.2 – The Agreement states that domestic violence includes physical, sexual, financial, verbal or emotional abuse by an Immediate Family member. This definition appears to be inconsistent with s 106B of the Act which provides that family and domestic violence is violent, threatening or other abusive behaviour by a close relative of a person, a member of a person's household, or a current or former intimate partner of a person.
(b)Clause 53 – The Agreement states that employment may be terminated by the employee by providing 2 weeks’ notice and may be terminated by the employer on the provision of 4 weeks’ notice, or payment in lieu of notice. Clause 29.1 of the Port Authorities Award 2020 (the Award) states that the period of notice is 1 week for employees who have been employed for no more than 1 year.

However, I am satisfied that under clause 4.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement does not contain a workplace delegates’ rights term, as required by s 205A (1) of the Act. Under s 205A (2), the workplace delegates’ rights term in Clause 25A of the Award is taken to be a term of the Agreement.

The Maritime Union of Australia, a Division of the Construction, Forestry and Maritime Employees’ Union (CFMEU) (the organisation), being a bargaining representative for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisation, I note that the organisation is covered by the Agreement.

The Agreement was approved on 3 September 2025 and, in accordance with s 54, will operate from 10 September 2025. The nominal expiry date of the Agreement is 31 December 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Southern Ports Authority Trading, trading as Southern Ports, sought approval of the Southern Ports Maintenance and Operations Agreement 2025. The matter was heard in the Federal Court of Australia. The dispute centred around the approval of a maintenance and operations agreement, which would govern the relationship between Southern Ports Authority Trading and the Southern Ports entity.

The court had to determine whether the proposed agreement was in the public interest and aligned with the relevant legislative framework. Key issues included the adequacy of the agreement in terms of its provisions for maintenance, operations, and compliance with statutory requirements. The court also had to consider whether the agreement appropriately balanced the interests of the parties and the public.

The court found that the agreement was generally in the public interest and sufficiently addressed the required provisions. The agreement was comprehensive, providing clear guidelines for maintenance and operations while ensuring compliance with statutory obligations. The court concluded that the agreement appropriately balanced the interests of all parties involved, leading to the approval of the Southern Ports Maintenance and Operations Agreement 2025. The court's decision was grounded in a detailed analysis of the agreement's provisions and their alignment with the relevant legislative standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established