Atwood Oceanics Pacific Limited

[2016] FWCA 8830

[2016] FWCA 8830

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Atwood Oceanics Pacific Limited
(AG2016/6908)

ATWOOD OCEANICS ENTERPRISE AGREEMENT 2013

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 15 DECEMBER 2016

Application for variation of the Atwood Oceanics Enterprise Agreement 2013.

[1] On 9 November 2016, the Fair Work Commission (Commission) received an application from Atwood Oceanics Pacific Limited (Atwood Oceanics) for the approval of a variation of the Atwood Oceanics Enterprise Agreement 2013 (Agreement) pursuant to section 210 of the Fair Work Act 2009 (FW Act) (Application).

[2] The Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 24 November 2017. The variation to the Agreement was made on 2 November 2016.

[3] The Agreement covers Atwood Oceanics and Atwood Australian Waters Drilling Pty Ltd (AAWD), both of which are single interest employers pursuant to section 172(5) of the FW Act. No employer organisations or unions are parties to the Agreement.

[4] The Reference Instrument is the Hydrocarbons Industry (Upstream) Award 2010 (Award).

[5] The variation to the Agreement seeks to remove subclause 10(d)(iv) in the Agreement which currently provides for a 5% (or a percentage equivalent to the CPI increase for Perth, Western Australia) increase to employees’ base salary on 31 October 2016. The rest of the Agreement will remain the same, including the existing rates of pay.

[6] Sections 210 and 211 of the FW Act set out the conditions which must be met for an agreement to be varied by the Commission. Section 210 of the FW Act states:

“210 Application for the FWC’s approval of a variation of an enterprise agreement

Application for approval

(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and
(c) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the variation is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

Signature requirements

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.”

[7] Section 211(1) of the FW Act states:

“211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).”

[8] In accordance with subsection 210(2)(c) of the FW Act, the Application was supported by:

(a) a statutory declaration in support of the variation by Mr Mark Kelly, Operations Manager, Atwood Osprey on behalf of Atwood Oceanics and AAWD (Kelly Statutory Declaration);

(b) a statutory declaration attesting to the steps undertaken by Atwood Oceanics to ensure that the variation requirements of the FW Act were met by Ms Alesha Sutherland, HR Generalist at Atwood Oceanics (Sutherland Statutory Declaration); and

(c) a copy of the PowerPoint presentation issued to employees which explained the terms of the proposed variation to the Agreement and the reasons for the proposed variation.

[9] A signed copy of the proposed variation was filed by Atwood Oceanics as required by section 210(2)(a) of the FW Act and is attached to this decision at Annexure A.

[10] A consolidated version of the Agreement, as varied, was filed by Atwood Oceanics as required by subsection 210(2)(b) of the FW Act and is provided with this decision.

[11] I am satisfied that each of the requirements of section 210 of the FW Act as are relevant to the Application for approval have been met.

[12] Pursuant to section 211 of the FW Act, in order to approve a variation of an enterprise agreement, the Commission needs to be satisfied that,had an application been made under subsection 182(4) or section 185 of the FW Act for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186 of the FW Act. This would require thatthe variation has been genuinely agreed to by the employees covered by the Agreement, the variation is made in accordance with the FW Act and that there are no serious public interest grounds for not approving the variation.

[13] On 24 November 2016, Atwood Oceanics was directed (Directions) to provide to the Commission a copy of the Agreement as proposed to be varied, a comparison table comparing the revised salary rates with those currently applicable in the reference Award as evidence as to whether employees covered by the Agreement are better off overall under the Award or the Agreement as proposed to be varied (Boot Evidence) and submissions in relation to whether there are any serious public interest grounds for not approving the variation (Submissions).

[14] In the same Directions, Atwood Oceanics were instructed to provide a copy of the Application, the Boot Evidence, Submissions and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact my Chambers by close of business on Monday 12 December 2016.

[15] On Monday 5 December 2016, Ms Anne Maree Hanson, Human Resources and Administration Services Supervisor, confirmed in a statutory declaration that a copy of the Application, the Boot Evidence, Submissions and the Directions had been provided to all employees currently covered by the Agreement.

[16] No applications to be heard were received from any employees of Atwood Oceanics on or before close of business on Monday 12 December 2016.

[17] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that, had the Application been made under section 185 of the FW Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the Agreement under section 186 of the FW Act.

[18] The expiry date of the Agreement is not proposed to be varied by the variations.

[19] I am satisfied that there are no serious public interest grounds for not approving the variation.

[20] Having been satisfied that sections 210 and 211 of the FW Act have been met, the variation of the Agreement is therefore approved and will operate from the date of this decision.

DEPUTY PRESIDENT

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ANNEXURE A