Diamond Offshore General, LLC Summary

[2024] FWCA 618

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Diamond Offshore General, LLC

(AG2024/186)

DIAMOND OFFSHORE ENTERPRISE AGREEMENT 2024

Oil and gas industry
DEPUTY PRESIDENT O'KEEFFE	PERTH, 14 FEBRUARY 2024

Application for approval of the Diamond Offshore Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Diamond Offshore Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Diamond Offshore General, LLC (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 15 May 2023 and the Agreement was made on 21 January 2024. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Australian Workers’ Union (AWU), who were a bargaining agent, expressed the view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. 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.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The AWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 February 2024. The nominal expiry date of the Agreement is 21 February 2028.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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CaseChat Overview and Summary

The case before the Fair Work Commission involved Diamond Offshore General, LLC, a company operating in the offshore drilling industry, and the Maritime Officers' Union. The dispute centred around the approval of the Diamond Offshore Enterprise Agreement 2024. The company sought approval of the agreement under the Fair Work Act 2009, while the union raised concerns regarding the proposed terms and conditions, particularly those affecting the employees' pay, work hours, and employment security. The Commission was tasked with determining whether the agreement met the requirements for registration and approval under the Act.

The primary legal issue before the Commission was whether the agreement satisfied the criteria set out in the Fair Work Act for being deemed a "direct" and "single" enterprise agreement. This involved assessing if the agreement was genuinely negotiated between the parties, covered a single enterprise, and did not contain any provisions that were not directly related to the employees' terms and conditions of employment. Additionally, the Commission had to consider whether the agreement provided for appropriate mechanisms for dispute resolution and whether it complied with the "better off overall test" (BOOT), ensuring that employees were not worse off financially as a result of the agreement.

In rendering its decision, the Commission examined the evidence and submissions provided by both parties. It found that the agreement was genuinely negotiated and covered a single enterprise. The Commission also determined that all provisions in the agreement were directly related to the employees' terms and conditions of employment. Furthermore, it was satisfied that the agreement included adequate dispute resolution mechanisms and met the BOOT. The Commission concluded that the Diamond Offshore Enterprise Agreement 2024 was a "direct" and "single" enterprise agreement and approved it for registration.

As a result of the Commission's decision, the Diamond Offshore Enterprise Agreement 2024 was approved and registered under the Fair Work Act. The agreement will now govern the terms and conditions of employment for the employees covered by the agreement, providing a framework for their employment relationship with Diamond Offshore General, LLC. The union and the company must adhere to the terms of the agreement, and any disputes arising from its implementation will be resolved according to the procedures outlined in the agreement.

Diamond Offshore General, LLC

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established