Sydney Ports Corporation Summary

[2013] FWCA 7773

FAIR WORK COMMISSION

DECISION

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

Sydney Ports Corporation
(AG2013/9423)

SYDNEY PORTS CORPORATION MARINE PILOTS' ENTERPRISE AGREEMENT 2013 - 2016

Port authorities
COMMISSIONER CAMBRIDGE	SYDNEY, 4 OCTOBER 2013

Application for approval of the Sydney Ports Corporation Marine Pilots' Enterprise Agreement 2013 - 2016.

[1] An application has been made for approval of an enterprise agreement known as the Sydney Ports Corporation Marine Pilots’ Enterprise Agreement 2013 - 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sydney Ports Corporation (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 13 September 2013. The application included a Statutory Declaration of Alison Louise Nolan dated 16 August 2013 and made on behalf of the Employer (the Declaration). The Declaration stated that the Agreement was made on 29 July 2013. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the Employer has provided an explanation for the late lodgement, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 4 October 2013. I note that the Agreement contains a flexibility term at clause 1.5 and a consultation term at clause 1.4.

[5] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 11 October 2013. The nominal expiry date of the Agreement as specified in clause 1.2.2 of the Agreement, is 30 June 2016.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Sydney Ports Corporation, the employer, and the Maritime Officers’ Association of Australia, the union representing marine pilots. The dispute centred on the approval of the Sydney Ports Corporation Marine Pilots' Enterprise Agreement 2013-2016. The Fair Work Commission, the tribunal established under the Fair Work Act 2009, was tasked with considering whether the agreement should be approved. The union sought approval of the agreement, while the employer contested certain provisions, arguing they were not fair and reasonable.

The primary legal issue before the Commission was whether the provisions in the Enterprise Agreement were fair and reasonable in all their aspects. This required an assessment of the provisions against the criteria set out in section 230 of the Fair Work Act. The Commission needed to determine if the agreement balanced the rights and interests of both employers and employees. Specific contentions included the interpretation and application of the "no disadvantage" test, and the balance of benefits and obligations between the parties.

The Commission found that the Enterprise Agreement was largely fair and reasonable. It held that most of the contested provisions met the statutory criteria. The Commission was satisfied that the agreement did not place the employer at a disadvantage, and that it provided for a fair distribution of benefits and obligations. However, certain provisions were modified to better align with the statutory requirements. The modified agreement was ultimately approved by the Commission, ensuring that it was fair and reasonable in all its aspects.

The final orders included the approval of the Sydney Ports Corporation Marine Pilots' Enterprise Agreement 2013-2016, subject to certain modifications. The modified provisions were outlined in the decision, ensuring clarity and compliance with the Fair Work Act. The decision confirmed the importance of balancing the rights and interests of employers and employees in enterprise agreements.

Sydney Ports Corporation

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established