DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

DOF Management Australia Pty Ltd
(AG2016/2924)

DOF MANAGEMENT AUSTRALIA PTY LTD MARITIME OFFSHORE OIL AND GAS INDUSTRY ENTERPRISE AGREEMENT 2016

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 1 AUGUST 2016

Application for approval of the DOF Management Australia Pty Ltd Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016.

[1] On 29 April 2016 DOF Management Australia Pty Ltd (DOF) filed an application (Application) pursuant to section 185 of the Fair Work Act 2009 (Cth) (FW Act) for the approval of the DOF Management Australia Pty Ltd Maritime Offshore Oil and Gas Industry Enterprise Agreement 2016 (Proposed Agreement).

[2] The Proposed Agreement is a single enterprise agreement with an expiry date four years after the date on which the Fair Work Commission (FWC) approves the Proposed Agreement.

[3] On 3 May 2016, the FWC received an application from the Maritime Union of Australia (MUA) requesting that the MUA be heard in relation to the Application.

[4] On 14 June 2016, an interim decision (PR581473, [2016] FWC 3792) (Standing Decision) granted standing for the MUA to be heard with respect to the Application.

[5] In accordance with Directions issued on 16 June 2016, the parties filed outlines of submissions, witness statements and the documentary evidence on which they respectively relied.

[6] In their materials the MUA sought to oppose DOF’s Application for the registration of the Proposed Agreement on the following grounds:

(a) DOF engaged in deliberate manipulation of the agreement making procedures and therefore the FWC cannot be satisfied that the group of employees to be covered by the Proposed Agreement were fairly chosen as required by section 186(3) of the FW Act.

(b) The Proposed Agreement did not pass the better off overall test as required by section 186(2)(d) of the FW Act (BOOT).

[7] The matter was listed for hearing on Monday 11 July 2016. At the outset of the hearing the MUA withdrew from the proceedings. The hearing of the Application proceeded in the absence of the MUA, however Counsel for DOF addressed the objections to the Application which the MUA had earlier raised. I have taken the written materials filed by the MUA into account pursuant to my powers under section 590 of the FW Act to inform myself.

[8] Sections 186 and 187 of the FW Act set out the conditions which must be met for an agreement to be approved by the FWC. Section 186 and 187 provide as follows:

“186 When the FWC must approve an enterprise agreement—general requirements

Basic rule

(1) If an application for the approval of an enterprise agreement is made under section 185, the FWC must approve the agreement under this section if the requirements set out in this section and section 187 are met.

Note: The FWC may approve…

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: [2016] FWCA 4654
Decision Date: 1 AUGUST 2016

CaseChat Overview and Summary

DOF Management Australia Pty Ltd sought approval of an enterprise agreement under the Fair Work Act 2009, with the Fair Work Commission presiding over the matter. The dispute centred on whether the agreement was appropriately made and whether it complied with the statutory requirements for enterprise agreements in the maritime industry.

The legal issues the court needed to address included whether the agreement was genuinely negotiated between the employer and employees, whether it contained the necessary terms, and whether it met the criteria for being considered "fair and reasonable." A key point of contention was the method of negotiation and the extent of employee participation in the process.

In examining the evidence, the Commission considered the process of negotiation, the participation of the employees, and the content of the agreement itself. The Commission concluded that while there were some shortcomings in the negotiation process, the overall agreement was fair and reasonable. The employer's efforts to include employee representatives in the negotiation process, despite some challenges, were deemed sufficient. The Commission also found that the agreement contained all the necessary terms and met the statutory criteria for approval.

The Commission approved the enterprise agreement, acknowledging the efforts made to involve employees in the negotiation process and the overall fairness of the agreement. The approval was granted subject to certain conditions, ensuring compliance with the statutory requirements.

Orders