Bhagwan Marine Limited

[2024] FWCA 3300

[2024] FWCA 3300

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bhagwan Marine Limited

(AG2024/3029)

BHAGWAN MARINE LTD OFFSHORE VESSEL OPERATIONS AND MUA OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2024

Maritime industry
COMMISSIONER P RYAN	SYDNEY, 18 SEPTEMBER 2024

Application for approval of the Bhagwan Marine Ltd Offshore Vessel Operations and MUA Offshore Oil and Gas Enterprise Agreement 2024

1. Bhagwan Marine Limited (Employer) has made an application for approval of an enterprise agreement known as the Bhagwan Marine Ltd Offshore Vessel Operations and MUA Offshore Oil and Gas Enterprise Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Section 190 Undertakings

1. The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

1. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met.

1. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the responses to issues identified, and the Statement of Principles.[1]

Model Consultation Term

1. The Agreement does not contain a consultation term, as required by s.205(1) of the FW Act. Pursuant to s.205(2) of the FW Act, the model consultation term prescribed by the FW Regulations is taken to be a term of the Agreement.

Delegates’ rights term

1. The Agreement does not contain a delegates’ rights term that meets the requirements of s.205A of the FW Act. Pursuant to s.205A(2) of the FW Act, clause 24A of the Maritime Offshore Oil and Gas Award 2020 is taken to be a term of the Agreement.

Section 183 Bargaining Representatives

1. The Construction, Forestry and Maritime Employees Union (CFMEU), being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

1. In accordance with s.201(2), I note that the Agreement covers the CFMEU.

Approval

1. The Agreement is approved and, in accordance with s.54 of the FW Act, will operate from 25 September 2024. The nominal expiry date of the Agreement is 1 August 2027.

Section 218A variation to correct or amend errors, defects or irregularities

1. Section 218A of the FW Act provides:

(1) The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2) The FWC may vary an enterprise agreement under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i) one or more of the employers covered by the agreement;

(ii) an employee covered by the agreement;

(iii) an employee organisation covered by the agreement.

(3) If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. The Explanatory Memorandum for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 states:

775.     New subsection 218A(1) would empower the FWC, at its discretion, to vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (ie without the need for a Full Bench appeal). For example, the FWC could correct typographical errors or obvious omissions. The FWC would be able to decide how corrections are made.

776.     This addresses a regulatory gap, as the existing ‘slip rule’ in section 602 enables the FWC’s decisions, but not enterprise agreements, to be corrected: see Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453.”

1. On 14 June 2024, the Employer converted to a public company and changed its name from Bhagwan Marine Pty Ltd to Bhagwan Marine Ltd. Clause 3.1 of the Agreement contains references to the Employer’s former name.

1. After seeking the views of the parties, I am satisfied that this is an obvious error or defect as contemplated by s.218A and that I should exercise my discretion to amend the Agreement.

1. Accordingly, clause 3.1 of the Agreement is varied to remove “Bhagwan Marine Pty Ltd” wherever it appears and insert in each place “Bhagwan Marine Ltd”. This variation will operate from 18 September 2024. 

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

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