Townsville Bulk Storage & Handling Summary

[2013] FWCA 8039

FAIR WORK COMMISSION

DECISION

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

Townsville Bulk Storage & Handling
(AG2013/7482)

TOWNSVILLE BULK STORAGE & HANDLING (TBSH) ENTERPRISE AGREEMENT 2013

Stevedoring industry
COMMISSIONER CAMBRIDGE	SYDNEY, 14 OCTOBER 2013

Application for approval of the Townsville Bulk Storage & Handling (TBSH) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Townsville Bulk Storage & Handling (TBSH) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Townsville Bulk Storage & Handling (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 9 July 2013. The application included a Statutory Declaration of Peta Connelly made on behalf of the Employer and dated 18 June 2013, (the Declaration). The Declaration stated that the Agreement was made on 17 June 2013. Therefore the application was not lodged within the 14 day time limit established by subsection 185 (3) of the Act. However, in the circumstances where the application was made 8 days after the 14 day period, and an explanation for the late lodgement has subsequently been provided, I have decided to exercise the discretion provided by subsection 185 (3) (b) of the Act and extend time accordingly.

[3] The application for approval was listed for Hearing on 12 August and 26 September 2013, and on each occasion Ms P Connelly appeared for the Employer and Mr A Jacka appeared for the Maritime Union of Australia (MUA). During the proceeding held on 12 August and 26 September, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Ms Connolly and Mr Jacka provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. In due course, the Commission has received correspondence dated 10 October 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 26 and a consultation term at clause 23.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The MUA, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the MUA.

[10] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 21 October 2013. In accordance with clause 6 of the Agreement the nominal expiry date of the Agreement is 1 November 2015.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Townsville Bulk Storage & Handling (TBSH), the applicant sought approval of the Enterprise Agreement 2013 from the Fair Work Commission. The agreement in question was made between the employer, Townsville Bulk Storage & Handling, and the union representing the employees, the Maritime Union of Australia. The dispute centred on whether the agreement met the requirements under the Fair Work Act 2009 for a registered agreement to be approved. Specifically, the applicant had to demonstrate that the agreement had been fairly and genuinely negotiated, and that it contained minimum workplace entitlements.

The court was required to decide whether the agreement met the statutory criteria for approval, including whether it provided for a proper process of genuine negotiation, and if it contained all the minimum terms and conditions as outlined in the Fair Work Act. The court also had to consider whether the agreement was in the public interest and whether it provided for a fair and reasonable resolution of workplace issues.

The Fair Work Commission found that the agreement had been genuinely negotiated between the parties, as evidenced by the extensive consultation process and the documentation provided. The court determined that the agreement contained all the required minimum terms and conditions and that it was in the public interest. The Commission concluded that the agreement was fair and reasonable, providing for a balanced resolution of the issues between the parties. The court approved the agreement, finding it met all necessary statutory requirements.

The Fair Work Commission approved the Townsville Bulk Storage & Handling (TBSH) Enterprise Agreement 2013, certifying it as a registered agreement under the Fair Work Act 2009. This approval ensures that the agreement will be legally binding and enforceable, providing a framework for the employment relationship between the employer and the union.

Townsville Bulk Storage & Handling

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established