Application for approval of the Qube Ports Pty Ltd TT Line Tasmania Enterprise Agreement 2024

[1] An application has been made for approval of an enterprise agreement known as the Qube Ports Pty Ltd TT Line Tasmania Enterprise Agreement 2024 (Agreement). The Application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Qube Ports Pty Ltd (Employer). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached at 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. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7) of the Act.

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

• Redundancy: Clause 28.2.3 of the Agreement provides that severance pay is not payable where the employer finds suitable alternative employment. Under the NES, variation to redundancy pay can only be varied by application under s120 of the Act.

• Public holidays during annual leave: Clause 35.11 states that where a public holiday falls during a period of annual leave, an extra day for each public holiday will be added to that period of annual leave. However, the employee will not receive the extra day(s) in lieu of the public holiday unless the employee is available to start work at the next rostered shift after the period of annual leave ends or has reasonable cause for not being available. This is inconsistent with s. 89(a) and s. 116 of the Act, whereby use of annual leave after a public holiday is not contingent upon the employee's availability.

[5] However, noting clause 5.5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

[6] Section 205A(2) of the Act provides that where a delegates' rights term is less favourable in an agreement compared to the modern award, the agreement term will have no effect and the most favourable modern award term shall be taken to be a term of the enterprise.

[7] The Agreement contains a delegates' rights term at clause 57. I compared the clause to the Stevedoring Industry Award 2020 (Award) and determined that the Award term is more favourable.

[8] The Maritime Union of Australia, a Division of the Construction, Forestry and Maritime Employees' Union (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. In accordance with s 201(2) of the Act I note that the Agreement covers the organisation.

[9] The MUA was provided an opportunity to provide their views on the undertaking. They did not.

[10] The Agreement is approved, and in accordance with s.54, of the Act will operate from 4 March 2026. The nominal expiry date of the Agreement is 30 June 2028.

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