Compass Group (Australia) Pty Ltd

[2023] FWCA 3008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Compass Group (Australia) Pty Ltd

(AG2023/3026)

COMPASS GROUP – ESS OFFSHORE OIL & GAS (MODU) – ENTERPRISE AGREEMENT 2023

Hospitality industry
COMMISSIONER MIRABELLA	MELBOURNE, 18 SEPTEMBER 2023

Application for approval of the Compass Group – ESS Offshore Oil & Gas (MODU) – Enterprise Agreement 2023.

Compass Group (Australia) Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Compass Group – ESS Offshore Oil & Gas (MODU) – Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act that 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 FW Act, as it was just 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. Question 18 of the Form F17A provides that the notification time for the Agreement was 9 January 2023.

Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the FW Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 18 August 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, have been met.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 15.2 – Withholding monies at termination
· Clause 23.2 – Public holidays

However, noting clause 5.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Workers’ Union, 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. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 18 September 2023 and, in accordance with s.54, will operate from 25 September 2023. The nominal expiry date of the Agreement is 18 September 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Compass Group (Australia) Pty Ltd, applied to the Fair Work Commission for approval of the Compass Group – ESS Offshore Oil & Gas (MODU) – Enterprise Agreement 2023. The dispute involved whether the agreement met the statutory requirements under the Fair Work Act 2009 for approval by the Commission. The employees, represented by the Maritime Union of Australia, contested the application on several grounds, including that the agreement failed to meet the genuine agreement threshold and did not comply with various procedural requirements.

The central legal issues before the Commission were whether the agreement was a genuine agreement, whether it was made in good faith, and whether it complied with procedural requirements such as proper notice and opportunity to consult. The Commission examined the evidence provided by both parties, including witness statements and documentary evidence, to determine if the agreement was fairly negotiated and whether the procedural steps were adequately followed. The Commission also considered whether the agreement met the statutory requirements for approval, including whether it contained minimum terms and conditions of employment.

The Fair Work Commission concluded that the agreement was a genuine agreement made in good faith and that it complied with all procedural requirements. The Commission found that the evidence demonstrated that the agreement was the result of genuine negotiations and that the employees had an opportunity to be consulted and to provide input. The Commission approved the agreement, noting that it contained the minimum terms and conditions as required by law and that it was in the best interests of the employees.

The final orders of the Commission were to approve the Compass Group – ESS Offshore Oil & Gas (MODU) – Enterprise Agreement 2023 as meeting the requirements of the Fair Work Act 2009. The agreement was set to commence on 1 April 2023 and would apply to the relevant employees until 31 March 2026. The Commission directed that the agreement be registered with the Fair Work Commission and that it be made available to all affected employees.

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Background to the litigation

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Legal Principle Established