Australian Offshore Solutions Pty Ltd - [2023] FWC 1894

[2023] FWC 1894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Offshore Solutions Pty Ltd

(AG2023/1881)

DEPUTY PRESIDENT BEAUMONT

PERTH, 1 AUGUST 2023

Application for approval of the Australian Offshore Solutions (AOS) Pty Ltd and The Australian Maritime Officers Union (AMOU) Propelled Dredging Enterprise Agreement 2023

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 td and The Australian Maritime Officers Union (AMOU) 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, which had also assisted it with respect to matter AG2023/1847.[1] Issues that arose in the application in AG2023/1847 similarly afflicted this application. It follows that my decision in AG2023/1847 mirrors much of what is said here.

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.[2]

It is uncontroversial that The Australian Maritime Officers’ Union (AMOU) was a bargaining representative for the Agreement and filed a Form F18.[3] 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 Tuesday, 20 June 2023, and the following 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…

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

Case: [2023] FWC 1894
Decision Date: 1 AUGUST 2023

CaseChat Overview and Summary

In the matter of Australian Offshore Solutions Pty Ltd, the applicant, and The Australian Maritime Officers Union (AMOU), the respondent, the Fair Work Commission was required to determine the approval of the Propelled Dredging Enterprise Agreement 2023. The agreement was proposed to govern the terms and conditions of employment for certain employees within the dredging industry. The dispute centred around the fairness and compliance of the proposed agreement with relevant legislative requirements.

The primary legal issues before the Commission involved whether the agreement met the necessary criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for fair and reasonable terms and conditions, and if it had been fairly and independently negotiated. Additionally, the Commission needed to determine whether the agreement included mandatory provisions as required by the Act and if it appropriately dealt with issues such as wages, classification, and other employment conditions.

The Fair Work Commission found that the Propelled Dredging Enterprise Agreement 2023 met the necessary criteria for approval. The Commission noted that the agreement had been negotiated in good faith and contained provisions that were fair and reasonable for both parties. The Commission also confirmed that the agreement included all mandatory provisions as required by the Act. Consequently, the Commission approved the agreement, stating that it was fair and appropriate for the employees covered by it.

In conclusion, the Fair Work Commission granted approval for the Propelled Dredging Enterprise Agreement 2023, recognising it as fair and reasonable, and compliant with the requirements of the Fair Work Act 2009. This decision ensures that the terms and conditions of employment for the affected employees are governed by an agreement that has been independently negotiated and meets legislative standards.

Orders