Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling

[2021] FWCA 1835

[2021] FWCA 1835

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling
(AG2021/4238)

QUANTEM PORT BOTANY BULK LIQUID ENTERPRISE AGREEMENT 2021 - 2024

Storage services
COMMISSIONER CIRKOVIC	MELBOURNE, 6 APRIL 2021

Application for approval of the Quantem Bulk Liquid Storage and Handling Port Botany Agreement 2021 - 2024.

[1] An application has been made for approval of an enterprise agreement known as the Quantem Port Botany Bulk Liquid Enterprise Agreement 2021 - 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Terminals Pty Ltd T/A Quantem Bulk Liquid Storage and Handling. The Agreement is a single enterprise agreement.

[2] The employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187 and 188 as are relevant to this application for approval have been met.

[4] The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 10.2.9

[6] However, noting clause 2.4 of the Agreement, I am satisfied that the beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] I note that the Applicant did not provide employees with a copy of the Notice of Employee Representational Rights (NERR) in accordance with s. 173(1) of the Act. The Applicant states that, due to an error, the NERR was only emailed to the “bargaining representative and the Union Organiser” but was placed on noticeboards at sites covered by the Agreement. In the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, having regard to the content of the statutory declaration I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

[8] The Agreement was approved on 6 April 2021 and, in accordance with s.54, will operate from 13 April 2021. The nominal expiry date of the Agreement is 13 April 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE510978  PR728367>

ANNEXURE A