Australian Offshore Solutions Pty Ltd

[2023] FWCA 1279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Offshore Solutions Pty Ltd

(AG2023/1169)

AUSTRALIAN OFFSHORE SOLUTIONS (AOS) PTY LTD AND THE MARITIME UNION OF AUSTRALIA PROPELLED DREDGING GREENFIELDS AGREEMENT 2023

Dredging industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 8 MAY 2023

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

An application has been made for approval of a greenfields agreement known as the Australian Offshore Solutions (AOS) Pty Ltd and The Maritime Union of Australia Propelled Dredging Greenfields Agreement 2023 (the Agreement). The application was made by Australian Offshore Solutions Pty Ltd pursuant to s 185 of the Fair Work Act 2009 (Cth) (the Act).

This is a greenfields agreement that meets the requirements of s 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 Construction, Forestry, Maritime, Mining and Energy Union (the organisation) is 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 Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s 191(2) of the Act, the undertakings are taken to be a term of the Agreement.

Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the organisation and that the Agreement covers it.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 15 May 2023. The nominal expiry date of the Agreement is 30 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicant, Australian Offshore Solutions Pty Ltd (AOS), sought approval from the Fair Work Commission (FWC) of a new enterprise agreement with the Maritime Union of Australia. The agreement in question was the Australian Offshore Solutions (AOS) Pty Ltd and The Maritime Union of Australia Propelled Dredging Greenfields Agreement 2023. The dispute centred on the terms of the proposed agreement, which the FWC was asked to assess for compliance with the Fair Work Act 2009. The FWC had to determine whether the agreement met the statutory requirements for approval, including fairness, and if the agreement was genuinely negotiated and not imposed by one party.

The primary legal issue before the FWC was whether the agreement was fairly negotiated and met the requirements of the Fair Work Act. This involved scrutinising the process by which the agreement was reached and assessing whether the terms were fair and reasonable. The FWC also had to consider whether the agreement complied with the Fair Work (Registered Organisations) Act 2009, particularly in relation to the representation of the employees. AOS argued that the agreement was the result of genuine negotiations and was fair and reasonable, while the union contended that certain terms were unfair and not genuinely negotiated.

The FWC found that the agreement was genuinely negotiated and met the requirements of the Fair Work Act. The commission assessed the negotiation process and found that it was conducted in good faith. The FWC also concluded that the terms of the agreement were fair and reasonable, taking into account the economic and non-economic factors relevant to the parties. The commission further determined that the agreement complied with the Fair Work (Registered Organisations) Act, as the union was appropriately authorised to negotiate on behalf of the employees.

The FWC approved the Australian Offshore Solutions (AOS) Pty Ltd and The Maritime Union of Australia Propelled Dredging Greenfields Agreement 2023, and the agreement came into effect on the date of the decision. The FWC's decision was based on the finding that the agreement was fairly negotiated and met the statutory requirements for approval. The FWC did not make any specific orders regarding the implementation of the agreement, as the approval itself was the final order in the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established