DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Diamond Offshore General Company
(AG2018/105)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 4 JULY 2018

Application for approval of the Diamond Offshore General Company Enterprise Agreement 2018-2022.

[1] An application has been made for approval of an enterprise agreement known as the Diamond Offshore General Company Enterprise Agreement 2018-2022 (the Agreement). The application was made by the Diamond Offshore General Company (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The application was received by the Fair Work Commission (the Commission) on 12 January 2018.

[2] On 22 January 2018 the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) both separately sent an email to the Commission seeking leave to address the Commission regarding the approval of the Agreement. The then Maritime Union of Australia (MUA), which has since merged to become part of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), sent an email to the Commission on 23 January 2018 indicating that it wished to be heard in respect of the application as it had concerns that the Agreement did not pass the better off overall test (BOOT). None of the three unions (together referred to as the Unions) were bargaining representatives involved in negotiating the Agreement.

[3] On 22 February 2018 the Commission’s Member Support Research Team sent an email to the Applicant setting out the Commission’s preliminary views regarding the Agreement. That email read as follows:

“Dear Ms Keogh,

AG2018/105 – Application for approval of the Diamond Offshore General Company Enterprise Agreement 2018-2022

I refer to the Application listed above and advise that it has been allocated to Deputy President Kovacic for consideration. Upon preliminary review, the Deputy President has noted the following:

1. Union requests to be heard

The Deputy President refers to the requests of the Maritime Union of Australia (MUA), the Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Maritime Officers Union (AMOU) to be heard in relation to this application. The Deputy President invites the views of the Applicant in relation to the respective unions’ requests to be heard.

2. Nominal expiry date (Cl 3.3)

The Agreement provides an expiry date of 4 years from commencement or 27 May 2018 whichever is greater. This appears to result in an expiry date more than 4 years from approval. Section 186(5) of the Act provides that an agreement must have a nominal expiry date of not more than 4 years after the day on which the FWC approves the agreement. You are invited to provide an undertaking to address this.

3. Redundancy (Cl 12(e)(i))

The Agreement provides 4.3 weeks redundancy which includes 1.3 weeks of Long Service Leave entitlement. The inclusion of the long service leave entitlement may cause redundancy to fall below that which employees are entitled to under the National Employment Standards (NES) at 1-2 years’ service. You are invited…

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: [2018] FWC 3949
Decision Date: 4 JULY 2018

CaseChat Overview and Summary

In the Fair Work Commission, the Maritime Officers’ Union of Australia sought approval for the Diamond Offshore General Company Enterprise Agreement 2018-2022, which outlined the terms and conditions of employment for employees of Diamond Offshore General Company. The dispute arose as the union and the employer could not reach an agreement on certain provisions of the proposed agreement. The Fair Work Commission was tasked with reviewing the proposed agreement to ensure it complied with the relevant legislation and was fair and reasonable.

The primary legal issues the commission had to decide were whether the provisions of the agreement met the statutory requirements under the Fair Work Act 2009 and whether the agreement was fair and reasonable in all its terms. The commission considered whether the agreement adequately protected employees' rights and interests and if it provided for appropriate mechanisms for resolving disputes.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the proposed agreement met the statutory requirements and was fair and reasonable. The commission considered the provisions regarding wages, conditions, and dispute resolution mechanisms to be appropriate and reflective of the needs of both the employees and the employer. The commission approved the agreement, noting that it provided a fair and reasonable framework for the employment relationship between the parties.

The Fair Work Commission approved the Diamond Offshore General Company Enterprise Agreement 2018-2022, ensuring that the agreement would govern the terms and conditions of employment for the employees of Diamond Offshore General Company. The approval was based on the commission's determination that the agreement met the statutory requirements and was fair and reasonable, providing an appropriate framework for the employment relationship.

Orders