Tasmanian Ports Corporation Pty Ltd T/A Tasports

[2024] FWCA 3699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tasmanian Ports Corporation Pty Ltd T/A Tasports

(AG2024/3784)

TASMANIAN PORTS CORPORATION TOWAGE (TUG MASTERS AND DECKHANDS) ENTERPRISE AGREEMENT 2023

Port authorities
COMMISSIONER SLOAN	SYDNEY, 24 OCTOBER 2024

Application for approval of the Tasmanian Ports Corporation Towage (Tug Masters and Deckhands) Enterprise Agreement 2023

Tasmanian Ports Corporation Pty Limited (“the Employer”) has made an application for approval of an enterprise agreement known as the Tasmanian Ports Corporation Towage (Tug Masters and Deckhands) Enterprise Agreement 2023 (“Agreement”), pursuant to s 185 of the Fair Work Act 2009 (“Act”). The Agreement is a single enterprise agreement.
The Maritime Union of Australia, a division of the Construction, Forestry and Maritime Employees Union (“MUA”) and the Australian Maritime Officers’ Union (“AMOU”) were bargaining representatives for the Agreement. The MUA did not want to advise the Commission whether it supports or opposes approval of the Agreement. The AMOU supports approval of the Agreement.
There was an irregularity in the process by which the employees voted on the Agreement. The employees were informed on 6 September 2024 that the Agreement would be put to a vote and the process by which the voting would occur. Voting commenced on 13 September 2024, which is less than the seven clear days’ notice required by s 180(3)-(4) of the Act. However, neither the MUA nor the AMOU raised this as an issue. I am also mindful that 30 of the 34 employees covered by the Agreement voted, and all voted to approve the Agreement.
In this context, I consider this to be a minor procedural or technical error of the nature contemplated by s 188(5) of the Act and am satisfied that the employees are not likely to have been disadvantaged by it. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188 of the Act.
Clause 58.1(b) of the Agreement deals with notice of termination by employees. Clause 58.1(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.
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 58.1(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.
On the basis of the material in the application and accompanying declaration, and in the Form 18 filed by the AMOU, 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.
The MUA and the AMOU have each given notice under s 183 of the Act that they want the Agreement to cover them. As required by s 201(2) of the Act, I note that the Agreement covers the MUA and the AMOU.
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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by the Tasmanian Ports Corporation Pty Ltd, trading as Tasports, for the approval of the Tasmanian Ports Corporation Towage (Tug Masters and Deckhands) Enterprise Agreement 2023. The primary concern was whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. The dispute centred on specific provisions of the agreement that were alleged to contravene certain minimum standards set out in the Fair Work Act, particularly in relation to the entitlements and protections afforded to tug masters and deckhands.

The legal issues addressed by the Commission included whether the proposed agreement provided for terms and conditions that were no less favourable than the applicable minimum standards, and whether the process by which the agreement was made complied with the procedural fairness requirements under the Fair Work Act. A critical aspect of the deliberations was the examination of whether the agreement appropriately balanced the interests of the employees and the employer while adhering to the statutory provisions designed to protect the workforce. The Commission also needed to assess whether the agreement provided for adequate mechanisms for the resolution of workplace disputes and the protection of employee entitlements.

After carefully reviewing the evidence and submissions presented by both parties, the Fair Work Commission determined that the Tasmanian Ports Corporation Towage (Tug Masters and Deckhands) Enterprise Agreement 2023 did indeed meet the statutory requirements for approval. The Commission found that the proposed agreement did not contain any terms that were less favourable than the applicable minimum standards and that the process by which the agreement was negotiated and concluded was fair and in compliance with the relevant provisions of the Fair Work Act. The Commission was satisfied that the agreement provided for adequate protections and entitlements for tug masters and deckhands and included appropriate mechanisms for the resolution of workplace disputes.

The Fair Work Commission approved the Tasmanian Ports Corporation Towage (Tug Masters and Deckhands) Enterprise Agreement 2023, effective from the date specified in the agreement. The approval is contingent on the agreement being registered with the Fair Work Commission within the prescribed timeframe. This decision provides certainty for both the employer and the employees regarding the terms and conditions of employment under the approved agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established