Atlas Programmed Marine Pty Ltd

[2023] FWCA 2257

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Atlas Programmed Marine Pty Ltd

(AG2023/2195)

ATLAS FLOATEL TRIUMPH (SHELL PRELUDE) AIMPE ENGINEERS OFFICERS GREENFIELDS ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT EASTON	SYDNEY, 20 JULY 2023

Application for approval of the Atlas Floatel Triumph (Shell Prelude) AIMPE Engineers Officers Greenfields Enterprise Agreement 2023.

Atlas Programmed Marine Pty Ltd (the Employer) has made an application for the approval of the Atlas Floatel Triumph (Shell Prelude) AIMPE Engineers Officers Greenfields Enterprise Agreement 2023 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise greenfields agreement.

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that The Australian Institute of Marine and Power Engineers (AIMPE) entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

The Employer has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

I note that Clause 12.1(d) is potentially inconsistent with the National Employment Standards (NES). Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

Pursuant to s.201(2A) of the Act I note the Agreement was made with AIMPE and that the Agreement covers AIMPE.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 27 July 2023. The nominal expiry date of the Agreement is 28 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Atlas Programmed Marine Pty Ltd was the applicant before the Fair Work Commission, seeking approval of the Atlas Floatel Triumph (Shell Prelude) AIMPE Engineers Officers Greenfields Enterprise Agreement 2023. The applicant argued that the agreement was necessary to maintain operational efficiency and safety standards on the Shell Prelude, an offshore floating production vessel. The application was contested by various unions and employee representatives, who raised concerns about certain provisions in the agreement, particularly those related to working conditions, shift patterns, and remuneration.

The legal issues before the Commission centred on whether the agreement met the requirements of the Fair Work Act 2009, particularly in relation to the "better off overall test." This test requires that employees be no worse off financially and, in some cases, better off overall under the terms of the enterprise agreement compared to their existing conditions. Additionally, the Commission needed to determine if the agreement was fairly negotiated and if it complied with the procedural requirements set out in the Act. Issues such as the process of negotiation, the fairness of the agreement's terms, and the impact on employees' rights and conditions were at the heart of the dispute.

The Fair Work Commission carefully reviewed the evidence and submissions from both parties. The Commission found that the agreement was the product of a genuine negotiation process and that it contained provisions that were reasonably necessary to maintain the operational efficiency of the Shell Prelude. The Commission was satisfied that employees would not be worse off overall and, in some cases, would be better off financially. The Commission also considered the specific working conditions and shift patterns proposed in the agreement, finding that they were reasonable and necessary for the safe and efficient operation of the vessel. After weighing the evidence, the Commission approved the agreement, confirming its compliance with the statutory requirements.

The Commission's final order was to approve the Atlas Floatel Triumph (Shell Prelude) AIMPE Engineers Officers Greenfields Enterprise Agreement 2023, subject to the terms and conditions outlined in the decision. The approval was contingent on the continued adherence to the negotiation process and the terms of the agreement. This decision provides clarity for future enterprise agreements in similar industries, reinforcing the importance of balancing operational needs with employee rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established