Tasmanian Ports Corporation Pty Ltd T/A Tasports

[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

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.

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

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]

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

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.

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.

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.

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.

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.

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the Tasmanian Ports Corporation, trading as Tasports, and various unions representing employees. The dispute centred around the approval of the Tasmanian Ports Corporation (TasPorts) Enterprise Agreement 2023. The case was heard by the Fair Work Commission (FWC), an Australian federal statutory body with the authority to arbitrate on employment-related disputes. The unions contested the proposed agreement, arguing that it did not adequately protect employee interests, particularly in areas of wages, working conditions, and job security.

The key legal issues before the FWC were whether the proposed enterprise agreement complied with the requirements of the Fair Work Act 2009, including provisions related to the protection of employee rights and interests. The Commission needed to determine if the agreement met the 'better off overall test', ensuring that employees were not worse off financially or in terms of conditions compared to the previous agreement or applicable awards. Additionally, the Commission assessed whether the agreement provided adequate protection for employee health and safety, and whether it complied with any relevant industrial laws and standards.

The FWC examined the evidence and submissions presented by both parties, considering the economic context and the specific needs of the employees. The Commission concluded that, while there were some areas of concern, the overall provisions of the agreement did meet the statutory requirements. It found that employees would not be worse off overall and that the agreement included adequate provisions for health, safety, and employee rights. Consequently, the FWC approved the Tasmanian Ports Corporation (TasPorts) Enterprise Agreement 2023, emphasising the need for ongoing dialogue between the employer and employees to address any emerging issues.

The FWC's decision was final and binding, as per the statutory framework. The approval of the enterprise agreement meant that it would now govern the employment terms and conditions for the relevant employees, replacing the previous agreement. The unions and the employer were required to adhere to the terms of the new agreement, which included specific provisions for wage increases, working conditions, and other employment-related matters.

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