Tasmanian Ports Corporation Pty Ltd T/A Tasports

[2024] FWCA 3700

[2024] FWCA 3700

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasmanian Ports Corporation Pty Ltd T/A Tasports

(AG2024/3785)

TASMANIAN PORTS CORPORATION TOWAGE (ENGINEERS) ENTERPRISE AGREEMENT 2023

Port authorities
COMMISSIONER SLOAN	SYDNEY, 24 OCTOBER 2024

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

1. Tasmanian Ports Corporation Pty Limited (“the Employer”) has made an application for approval of an enterprise agreement known as the Tasmanian Ports Corporation Towage (Engineers) Enterprise Agreement 2023 (“Agreement”), pursuant to s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.

2. Clause 60.1(b) of the Agreement deals with notice of termination by employees. Clause 60.1(b)(ii) provides that if an employee fails to give the required notice, the Employer “may withhold monies due to the employee to a maximum amount equal to the employee’s ordinary wages or salary for the period of notice”. On its face, the clause appears impermissibly to allow the Employer to withhold monies owing to the employee on termination under the National Employment Standards (“NES”), such as accrued but unused annual leave or long service leave.

3. Having noted that, cl 4 of the Agreement provides that where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit to employees, the NES will prevail to the extent of the inconsistency. This should ensure that cl 60.1(b)(ii) is not applied in a manner contrary to the NES. In raising the issue, it is my intention to ensure that this is the case.

4. The Australian Institute of Marine & Power Engineers (“AIMPE”) was a bargaining representative for the Agreement. It supports approval of the Agreement.

5. On the basis of the material in the application and accompanying declaration, and in the Form 18 filed by the AIMPE, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 of the Act as are relevant to the application for approval have been met.

6. The AIMPE has given notice under s 183 of the Act that it wants the Agreement to cover it. As required by s 201(2) of the Act, I note that the Agreement covers the AIMPE.

7. The Agreement is approved. In accordance with s 54 of the Act, the Agreement will operate from 31 October 2024. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

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