Tasmanian Ports Corporation Pty Ltd T/A Tasports

[2024] FWCA 3877

[2024] FWCA 3877

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Tasmanian Ports Corporation Pty Ltd T/A Tasports

(AG2024/3673)

TASMANIAN PORTS CORPORATION (TASPORTS) ENTERPRISE AGREEMENT 2023

Port authorities
COMMISSIONER CONNOLLY	MELBOURNE, 6 NOVEMBER 2024

Application for approval of the Tasmanian Ports Corporation (TasPorts) Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Tasmanian Ports Corporation (TasPorts) Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Tasmanian Ports Corporation Pty Ltd T/A Tasports (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 17 October 2024.

1. The notification time for the Agreement under s.173(2) was 5 April 2023 and the Agreement was made on 6 September 2024.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 22 October 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

·   Withholding of NES entitlements –

oIssue 1: Clause 9.1.2 (b) of the agreement provides that if an employee fails to provide the full period of notice, the Company shall have the right to withhold monies due to the employee, with a maximum amount equal to the ordinary time rate of pay for the period of notice not given.

oIssue 2: Clause 9.1.4 (a) of the agreement provides that upon termination for any reason, the Company shall have the right to deduct from an employee’s final pay any amount owing to the Company.  In the event that there are insufficient funds available to fully release an employee’s debt, the Company shall seek to recover the money via alternate channels.

This may restrict an employee’s entitlement to payment of NES entitlements upon termination of employment.

1. Clause 1.6 of the Agreement acts as an effective NES precedence clause, in that it states that ‘Where there is an inconsistency between this Agreement and the NES, and the NES provides a greater benefit to Employees, the NES will apply to the extent of the inconsistency’. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The “Construction, Forestry and Maritime Employees Union” 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) of the Act I note that the Agreement covers these organisations.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. 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 30 June 2026.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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