Esso Australia Pty Ltd

[2024] FWCA 729

[2024] FWCA 729

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Esso Australia Pty Ltd

(AG2024/317)

ESSO OFFSHORE ENTERPRISE AGREEMENT 2023

Oil and gas industry
COMMISSIONER ALLISON	MELBOURNE, 28 FEBRUARY 2024

Application for approval of the Esso Offshore Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Esso Offshore Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Esso Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The Australian Workers’ Union (AWU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) were bargaining representatives to the Agreement. Each of the above organisations has given notice under s.183 of the Act that it seeks to be covered by the Agreement. In accordance with s.201(2) I note that the Agreement covers all three organisations.

1. On 21 February 2024, my Chambers sent correspondence to the parties outlining issues relating to the Agreement. On 23 February 2024 I received a response from James Weston, Labor Relations Advisor for the Applicant addressing the issues raised. 

1. The first issue related to the agreement title on the Notice of Employee Representational Rights (NERR) that was issued to the employees. The NERR refers to the “Esso Offshore Enterprise Agreement 2014”, which does not match the title of the Agreement to be approved. Noting the history of negotiations between the parties relating to this Agreement, I am satisfied that this is a minor procedural or technical error and that the employees were not likely to have been disadvantaged by it. Accordingly, I exercise the discretion conferred by s.188(5) of the Act to disregard this error.

1. Secondly, I observed the following provisions of the Agreement may be inconsistent with the National Employment Standards (NES):

• Clause 25(g), relating to the accrual of annual leave by employees working on the new roster, accrues annual leave in hours/days, as opposed to weeks.   

• Clause 45, relating to compassionate leave, does not provide an entitlement to compassionate leave in circumstances where a child is stillborn or there is a miscarriage, inconsistent with s.104 of the Act.

1. However, noting clause 4(d) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. Thirdly, I sought clarification from the parties on which Award was incorporated into the Agreement pursuant to clause 4(a). The Applicant confirmed that the Oil Industry (Long Service Leave) Award 2000 was to be incorporated.

1. Finally, I noted that rates of pay have not been provided for adult apprentices in the Agreement. I asked the Applicant to clarify if they employ adult apprentices and, if so, what rate of pay they receive.

1. In response, the Applicant submitted that it does not currently employ adult apprentices and has not done so for many years. I accept the Applicant’s submission and am satisfied that for the purpose of s.193A(6) of the Act that apprentices are not types of employees that are reasonably foreseeable and therefore relevant for the better off overall test.

1. I am satisfied that each of the requirements of ss.186, 187 and 188, as are relevant to this application for approval, have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 6 March 2024. The nominal expiry date of the Agreement is 30 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE523656  PR771797>