DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Tasmanian Ports Corporation Pty Ltd T/A Tasports
(AG2018/7098)

TASPORTS TOWAGE TUG MASTERS AND DECKHANDS ENTERPRISE AGREEMENT 2016

Maritime industry
COMMISSIONER LEE	MELBOURNE, 25 JANUARY 2019

Application for approval of the TasPorts Towage Tug Masters and Deckhands Enterprise Agreement 2016.

[1] An application has been made for approval of an enterprise agreement known as the TasPorts Towage Tug Masters and Deckhands Enterprise Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Tasmanian Ports Corporation Pty Ltd T/A Tasports. The Agreement is a single enterprise agreement.

[2] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and The Australian Maritime Officers’ Union being bargaining representatives 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) I note that the Agreement covers the organisations.

[4] The Agreement lodged contained referencing errors at clauses 2(d), 8 and 53. Pursuant to section 586 of the Act, I note that all references to the Maritime Union of Australia will be read as a reference to the CFMMEU.

[5] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

• Clause 52.2(e) – Notice of Termination by Employer.

However, noting clause 8 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 1 February 2019. The nominal expiry date of the Agreement is 30 June 2019.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Tasmanian Ports Corporation Pty Ltd trading as Tasports, applied to the Fair Work Commission for approval of the TasPorts Towage Tug Masters and Deckhands Enterprise Agreement 2016. The dispute arose from negotiations between the employer and the employees represented by the Maritime Union of Australia. The applicants sought to have the proposed enterprise agreement approved under the Fair Work Act 2009, which mandates that certain conditions must be met for the agreement to be valid. The Commission was tasked with determining whether the agreement complied with the legal requirements, particularly focusing on the process by which it was formed and the provisions within it.

The legal issues before the Commission were whether the agreement was made in accordance with the procedural requirements set out in the Fair Work Act, and whether it contained any provisions that were not within the scope of matters that could be covered by an enterprise agreement. The Commission had to consider the evidence provided by both parties regarding the negotiation process and assess whether the agreement fairly reflected the terms and conditions of employment for the tug masters and deckhands. Additionally, the Commission needed to ensure that the agreement did not include any terms that were unlawful or contrary to public policy.

In its decision, the Commission found that the agreement was made in accordance with the necessary procedural requirements and that it did not contain any unlawful or contrary to public policy provisions. The Commission noted that the negotiation process was transparent and that the agreement fairly represented the terms and conditions of employment for the relevant employees. The Commission also found that the agreement covered matters that were appropriately within the scope of an enterprise agreement. Consequently, the Commission approved the TasPorts Towage Tug Masters and Deckhands Enterprise Agreement 2016, recognising it as a valid and binding agreement under the Fair Work Act.

The final orders of the Commission were that the TasPorts Towage Tug Masters and Deckhands Enterprise Agreement 2016 be approved. This decision effectively formalised the agreement, allowing it to take effect and govern the employment conditions of the tug masters and deckhands employed by the Tasmanian Ports Corporation.

Tasmanian Ports Corporation Pty Ltd T/A Tasports

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established