Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad

[2017] FWCA 2712

[2017] FWCA 2712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210 - Application for approval of a variation of an enterprise agreement

Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad
(AG2017/984)

FARSTAD (INDIAN PACIFIC) PTY LTD (ENGINEER OFFICERS) OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2015

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 25 MAY 2017

Application for variation of the Farstad (Indian Pacific) Pty Ltd (Engineer Officers) Offshore Oil and Gas Enterprise Agreement 2015.

[1] On 24 March 2017, the Fair Work Commission (FWC) received an application from Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad (Farstad) for the approval of a variation of the Farstad (Indian Pacific) Pty Ltd (Engineer Officers) Offshore Oil and Gas Enterprise Agreement 2015 (Agreement) pursuant to section 210 of the Fair Work Act 2009 (FW Act) (Application).

[2] The Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 July 2018. The Agreement was approved and commenced operation on 18 September 2015. The variation to the Agreement was made on 13 March 2017.

[3] The Agreement covers Farstad and the Australian Institute of Marine and Power Engineers (AIMPE).

[4] The Reference Instrument is the Maritime Offshore Oil and Gas Award 2010 (Award).

[5] The variation to the Agreement seeks to amend the nominal expiry from 1 July 2018 to 10 September 2019, vary annualised salary increases and salary tables and discontinue the Construction Project Allowance Bonus from 1 July 2017.

[6] Sections 210 and 211 of the FW Act set out the conditions which must be met for an agreement to be varied by the Commission. Section 210 of the FW Act states:

“210 Application for the FWC’s approval of a variation of an enterprise agreement

Application for approval

(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the variation; and
(b) a copy of the agreement as proposed to be varied; and
(c) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the variation is made; or
(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

Signature requirements

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.”

[7] Section 211(1) of the FW Act states:

“211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).”

[8] In accordance with subsection 210(2)(c) of the FW Act, the Application was supported by:

(a) a statutory declaration in support of the variation by Ms Natasha Lindfield (Ms Lindfield), Crewing Manager at Farstad, outlining the steps taken by Farstad to ensure the variation was genuinely approved (Lindfield Statutory Declaration);

(b) a statutory declaration by Mr Michael Carroll (Mr Carroll), National Organiser at the AIMPE, which declared that the matters contained in Ms Lindfield’s statutory declaration that were within Mr Carroll’s knowledge were true (Carroll Statutory Declaration).

[9] A signed copy of the proposed variation was filed by Farstad as required by section 210(2)(a) of the FW Act and is attached to this decision at Annexure A.

[10] A consolidated version of the Agreement, as varied, was filed by Farstad as required by subsection 210(2)(b) of the FW Act and is attached to this decision.

[11] I am satisfied that each of the requirements of section 210 of the FW Act as are relevant to the Application for approval have been met.

[12] Pursuant to section 211 of the FW Act, in order to approve a variation of an enterprise agreement, the FWC needs to be satisfied that,had an application been made under subsection 182(4) or section 185 of the FW Act for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186 of the FW Act. This would require thatthe variation has been genuinely agreed to by the employees covered by the Agreement, the variation is made in accordance with the FW Act, and that there are no serious public interest grounds for not approving the variation.

[13] On 13 April 2017, Farstad was directed (Directions) to file with the FWC a copy of the Agreement as proposed to be varied, evidence as to whether employees covered by the Agreement are better off overall under the Award or the Agreement as proposed to be varied (BOOT Evidence), and submissions in relation to whether there are any serious public interest grounds for not approving the variation (Submissions).

[14] Farstad filed as BOOT evidence a comparative table for each employee classification outlining the differences between salary, allowances and other benefits provided under the varied Agreement compared to the Award. This table indicated that employees will be between 44% and 106% better off overall under the Varied Agreement compared to the Award.

[15] Farstad submitted that it was in the public interest to approve the variation to ensure the financial viability of the business.

[16] Farstad were also directed to provide a copy of the Application, the Lindfield Statutory Declaration, the Carroll Statutory Declaration, the BOOT Evidence, the Submissions and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee, whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application to contact my Chambers by close of business on Thursday 11 May 2017.

[17] On 3 May 2017, correspondence from Mr Andrew Williamson (Mr Williamson), Assistant Federal Secretary of the AIMPE, was filed with the FWC. Mr Williamson stated that the AIMPE were satisfied with the submissions filed by Farstad in relation to the Application, and were of the view that the proposed variation should be approved by the FWC.

[18] On 4 May 2017, Ms Lindfield confirmed in a statutory declaration that a copy of the above materials had been provided to all employees currently covered by the Agreement.

[19] No applications to be heard were received from any employees of Farstad on or before close of business on Thursday 11 May 2017.

[20] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that, had the Application been made under section 185 of the FW Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the Agreement under section 186 of the FW Act.

[21] The proposed expiry date of the varied Agreement, 10 September 2019, is less than four years after the date on which the FWC approved the Agreement.

[22] I am satisfied that there are no serious public interest grounds for not approving the variation.

[23] Having been satisfied that sections 210 and 211 of the FW Act have been met, the variation of the Agreement is approved and will operate from the date of this decision.

DEPUTY PRESIDENT

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ANNEXURE A