Bhagwan Marine T/A Bhagwan Marine Pty Ltd Summary

[2023] FWCA 1386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Bhagwan Marine T/A Bhagwan Marine Pty Ltd

(AG2023/1231)

BHAGWAN MARINE PTY LTD AND AUSTRALIAN MARITIME OFFICERS UNION OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2023

Maritime industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 15 MAY 2023

Application for approval of the Bhagwan Marine Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement to be known as the Bhagwan Marine Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Bhagwan Marine Pty Ltd (Employer). The Agreement is a single enterprise agreement.

Undertakings

The Employer has provided written undertakings dated 11 May 2923. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Maritime Offshore Oil and Gas Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Coverage of employee organisation

The Australian Maritime Officers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants to be covered by the Agreement. In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

Model consultation and flexibility clauses

Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Conclusion

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

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 May 2023. The nominal expiry date of the Agreement is 15 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Bhagwan Marine T/A Bhagwan Marine Pty Ltd, the Fair Work Commission (FWC) was asked to consider an application for approval of an enterprise agreement. This agreement was proposed between Bhagwan Marine Pty Ltd and the Australian Maritime Officers Union. The dispute centered on whether the proposed terms and conditions set out in the Offshore Oil and Gas Enterprise Agreement 2023 complied with the requirements of the Fair Work Act 2009. Bhagwan Marine Pty Ltd, an employer in the maritime industry, sought the FWC’s approval of the agreement, which aimed to establish terms and conditions for its employees represented by the union. The union supported the application, arguing that the agreement met the necessary legal standards.

The primary legal issues the FWC had to address were whether the agreement contained all the mandatory terms required by the Fair Work Act and whether it was free from any illegality or unfairness. Additionally, the FWC needed to ensure that the agreement did not adversely affect the existing rights of employees or contravene any other provisions of the Fair Work Act. The FWC also had to consider whether the agreement had been made in good faith and whether it provided fair and reasonable terms for both parties.

In examining the application, the FWC found that the proposed agreement contained all the necessary mandatory terms and did not include any illegality or unfairness. The FWC determined that the agreement did not adversely affect the existing rights of employees and was consistent with the Fair Work Act. Furthermore, the FWC was satisfied that the agreement had been made in good faith and that it provided fair and reasonable terms for both parties. Based on these findings, the FWC approved the Offshore Oil and Gas Enterprise Agreement 2023. The approval ensures that the terms and conditions set out in the agreement will apply to the employees of Bhagwan Marine Pty Ltd, subject to the provisions of the Fair Work Act.

Bhagwan Marine T/A Bhagwan Marine Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established