Tasmanian Ports Corporation Pty Ltd T/A Tasports

[2024] FWCA 3699

[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

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 (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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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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