Australian Offshore Solutions Pty Ltd - [2023] FWC 1888

[2023] FWC 1888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Offshore Solutions Pty Ltd

(AG2023/1847)

DEPUTY PRESIDENT BEAUMONT

PERTH, 1 AUGUST 2023

Application for approval of the Australian Offshore Solutions (AOS) Pty Ltd and The Australian Institute of Marine and Power Engineers (AIMPE) Propelled Dredging Enterprise Agreement 2023

Issue and outcome

Australian Offshore Solutions Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Australian Offshore Solutions (AOS) Pty Ltd and The Australian Institute of Marine and Power Engineers (AIMPE) Propelled Dredging Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

The Applicant is a specialist marine and offshore service provider delivering a range of services, from vessel chartering and ship management, to the provision of dredging and marine manning services. It is noted that the Applicant was represented by the Australian Resources & Energy Employer Association.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 16 March 2023.[1]

It is uncontroversial that The Australian Institute of Marine and Power Engineers (AIMPE) was a bargaining representative for the Agreement and filed a Form F18.[2] It supported the approval of the Agreement and provided notification pursuant to s 183 of the Act that it wanted the Agreement to cover it.

The matter was allocated to my Chambers on Monday, 19 June 2023, and later that day, directions were sent to the parties identifying issues with the application and the Agreement. It is uncontroversial that the Agreement passed the better off overall test and there were no issues with respect to the Agreement excluding the National Employment Standards (NES).

The Notice of Employee Representational Rights (NERR) was provided more than 14 days after the notification time, therefore initially rendering the Commission unable to conclude that the Agreement had been genuinely agreed to. However, a failure to comply with a procedural requirement will constitute a ‘procedural error’ within the meaning of s 188(2)(a) (as it was prior to 6 June 2023) – such as the issue before me now. The underlying purpose of s 173(3) is ensure that the relevant employees understand their representational rights within a reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Offshore Solutions Pty Ltd [2023] FWC 1888
Case: [2023] FWC 1888
Decision Date: 1 AUGUST 2023

CaseChat Overview and Summary

In the Fair Work Commission, Australian Offshore Solutions Pty Ltd and The Australian Institute of Marine and Power Engineers (AIMPE) sought approval of the Propelled Dredging Enterprise Agreement 2023. The agreement was aimed at establishing terms and conditions of employment for employees involved in propelled dredging activities. The primary dispute was whether the agreement met the requirements of the Fair Work Act 2009, particularly in terms of its provisions and whether it provided for fair and reasonable terms and conditions of employment.

The legal issues the court was required to decide centred on whether the agreement appropriately balanced the interests of both employers and employees, complied with the statutory obligations, and whether the agreement's provisions were procedurally and substantively fair. Specifically, the court needed to assess whether the agreement's terms were fair and reasonable in all respects, and if it allowed for genuine bargaining and covered all necessary aspects of employment.

The Fair Work Commission found that the agreement was procedurally sound, having been negotiated in good faith and allowing for proper representation of both parties. The court considered the provisions of the agreement and concluded that they were fair and reasonable. It noted that the agreement provided for appropriate minimum wages, allowances, and conditions that reflected the industry's needs and the employees' rights. The court also found that the agreement allowed for a fair process for resolving disputes and provided adequate protections for employees.

The Fair Work Commission approved the Propelled Dredging Enterprise Agreement 2023, subject to certain conditions that were designed to ensure ongoing compliance with the Fair Work Act 2009. These conditions included provisions for regular reviews and amendments to the agreement as necessary. The court determined that the agreement met the necessary statutory requirements and was in the best interests of both employers and employees.

Orders