Atlas Programmed Marine (Australia) Pty Ltd T/A Atlas Professionals

[2023] FWCA 2909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Atlas Programmed Marine (Australia) Pty Ltd T/A Atlas Professionals

(AG2023/2914)

ATLAS PROGRAMMED MARINE (AUSTRALIA) PTY LTD DRILLING ENTERPRISE AGREEMENT 2023

Oil and gas industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 11 SEPTEMBER 2023

Application for approval of the Atlas Programmed Marine (Australia) Pty Ltd Drilling Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Atlas Programmed Marine (Australia) Pty Ltd Drilling Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Atlas Programmed Marine (Australia) Pty Ltd T/A Atlas Professionals (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 22 February 2023 and the Agreement was made on 18 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The CEPU, who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT. The AWU, who were a bargaining agent, expressed the view that the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Australian Workers' Union (AWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged Form F18 statutory declarations giving notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU and CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 18 September 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Atlas Programmed Marine (Australia) Pty Ltd, trading as Atlas Professionals, which applied for the approval of the Atlas Programmed Marine (Australia) Pty Ltd Drilling Enterprise Agreement 2023. The matter was heard in the Fair Work Commission. The primary dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009.

The legal issues the court needed to address were whether the agreement complied with the procedural and substantive requirements set out in the Fair Work Act. Procedurally, the court considered whether there had been genuine bargaining between the employer and employees, and if the necessary steps were taken to achieve the agreement. Substantively, the court examined whether the agreement provided fair and reasonable terms and conditions of employment, including minimum rates of pay, leave entitlements, and other employment conditions that met or exceeded the minimum standards set by the relevant awards.

The court found that the application satisfied all procedural requirements, as the employer had demonstrated genuine bargaining and followed the necessary steps to achieve the agreement. In terms of substantive requirements, the court concluded that the agreement provided fair and reasonable terms and conditions of employment, as it provided for minimum rates of pay and leave entitlements that met or exceeded the relevant award provisions. The court also noted that the agreement included additional benefits and provisions that improved upon the minimum standards, which was considered a positive aspect of the agreement. Therefore, the court approved the Atlas Programmed Marine (Australia) Pty Ltd Drilling Enterprise Agreement 2023.

The final orders of the court were that the agreement be approved as a registered agreement under the Fair Work Act. The agreement would now be applicable to the employees covered by the agreement and would remain in effect until it was terminated or replaced by a new agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established