DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sydney International Container Terminals Pty Ltd
(AG2021/6398)

HUTCHISON PORTS AUSTRALIA (HPA) AND MARITIME UNION OF AUSTRALIA (MUA) ENTERPRISE AGREEMENT 2021

Stevedoring industry
DEPUTY PRESIDENT DEAN	CANBERRA, 9 AUGUST 2021

Application for approval of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney International Container Terminals Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings to correct typographical errors and omissions in the Agreement. A copy of the undertaking is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

[3] 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.

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement

[6] The Maritime Union of Australia A Division of the Construction, Forestry, Maritime, Mining and Energy Union, 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) I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 August 2021. The nominal expiry date of the Agreement is 8 August 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Sydney International Container Terminals Pty Ltd was the subject of an application for the approval of the Hutchison Ports Australia (HPA) and Maritime Union of Australia (MUA) Enterprise Agreement 2021. The application was heard by the Fair Work Commission, which was tasked with determining whether the agreement should be certified as a registered Australian workplace agreement under the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement met the criteria for registration and whether the agreement was genuinely negotiated between the parties. Specifically, the Commission needed to consider whether the agreement was made in good faith, whether the parties had genuinely negotiated the terms, and whether the agreement met the procedural requirements under the Act.

The Commission found that the agreement was made in good faith and that the parties had genuinely negotiated the terms. The Commission also found that the agreement met the procedural requirements under the Act, including the requirement for the agreement to be in writing and for the parties to have provided each other with a copy of the agreement. The Commission certified the agreement as a registered Australian workplace agreement.

The Commission noted that while there were some concerns about the process of negotiation, particularly in relation to the timing of the agreement, these concerns did not go to the genuineness of the negotiation process. The Commission was satisfied that the agreement was genuinely negotiated and met the criteria for registration. The Commission made orders certifying the agreement as a registered Australian workplace agreement.

Sydney International Container Terminals Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established