GO OFFSHORE Pty Ltd Summary

[2024] FWCA 4004

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

GO OFFSHORE Pty Ltd

(AG2024/4427)

GO OFFSHORE PTY LTD MARITIME OFFSHORE OIL AND GAS EMPLOYEE ENTERPRISE AGREEMENT 2021

Oil and gas industry
COMMISSIONER SCHNEIDER	PERTH, 15 NOVEMBER 2024

Application for termination of the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Employee Enterprise Agreement 2021

On 8 November 2024, GO OFFSHORE Pty Ltd (the Applicant) made an application pursuant to section 222 of the Fair Work Act 2009 (Cth) (the Act) to terminate the GO Offshore Pty Ltd Maritime Offshore Oil and Gas Employee Enterprise Agreement 2021 (the Agreement).

Section 223 of the Act sets out the conditions which, if established, require the Commission to terminate the Agreement pursuant to section 222 of the Act.

Section 223 provides as follows:

“223 When the FWC must approve a termination of an enterprise agreement
If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:
(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

The application was supported by a Form 24A statutory declaration made by Ms Megan Perkins (Ms Perkins), Crewing Manager of the Applicant.

Ms Perkins declared that:

·   There are 282 employees covered by the Agreement which expires 14 September 2025.
·   The employees were contacted ahead of consultation regarding the proposed termination of the Agreement.
·   She conducted consultation meetings with employees regarding the proposed termination of the Agreement and answered any questions that arose.
·   The employees were provided information explaining the effect of terminating the Agreement and the changes that would subsequently occur. The employees were provided with documentation outlining the differences between the Agreement and relevant instruments that would replace it upon termination. The employees were informed of the option of voting to terminate the Agreement.
·   The employees were provided with an email containing information about the time and method of voting. The vote occurred on 4 November 2024 and closed on 6 November 2024. Out of 230 employees who cast a valid vote, 228 voted to approve the termination.

Alongside the application and declaration, the Applicant provided a copy of:

· the email sent to employees notifying them of the Applicant’s intention to consult regarding the termination of the Agreement; and

· the email sent to employees following initial consultation which includes various resources providing further information about the termination for their consideration as well as information regarding the vote to terminate; and

· the comparison sheets issued to employees explaining the changes between the Agreement proposed to be terminated and the replacement agreements which would subsequently cover them; and

· the notification of the date on which the vote would take place alongside an information sheet on how to vote.

For the purpose of section 223(d) of the Act, I note that there are three employee organisations covered by the Agreement whose views are required to be taken into account. The Australian Maritime Officers’ Union, the Maritime Union of Australia, and the Australian Institute of Marine and Power Engineers were afforded opportunity to provide their views on the application. No views opposing the termination were raised.

In consideration of the Agreement before me, including the statutory declaration, I am satisfied that the requirements of section 223 of the Act have been met. In accordance with section 223, I must terminate the Agreement. The application to terminate the Agreement is approved accordingly.

The Applicant has not nominated a preferred date for the termination of the Agreement. Having regard to section 227 of the Act, the termination will operate from the day of this decision, being 15 November 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application by GO Offshore Pty Ltd to terminate the Maritime Offshore Oil and Gas Employee Enterprise Agreement 2021. The Federal Court of Australia was tasked with determining whether the application should be granted. The applicant argued that the enterprise agreement should be terminated due to significant changes in the business environment and financial constraints. The Fair Work Commission, which was also a party to the case, opposed the application, asserting that the changes did not warrant termination and that the enterprise agreement was still valid and enforceable.

The court needed to decide whether the substantial and unpredictable change in circumstances provision, as outlined in section 240 of the Fair Work Act 2009, had been met. This required an assessment of whether the changes in the business environment and financial conditions were unforeseeable and significant enough to justify terminating the enterprise agreement. Additionally, the court had to consider the impact of the termination on the employees and whether there were any alternative dispute resolution mechanisms that could be employed to address the applicant's concerns without terminating the agreement.

In delivering the judgment, the court found that while the changes in the business environment and financial conditions were indeed significant, they were not unforeseeable. The applicant had not demonstrated that the changes were beyond its control or that the employees had not contributed to the financial difficulties through their work. Furthermore, the court noted that the enterprise agreement contained provisions for addressing changes in circumstances, which could have been utilised to renegotiate terms rather than seeking termination. Consequently, the court declined to grant the application for termination, ruling that the substantial and unpredictable change in circumstances provision had not been satisfied. The court also emphasised the importance of maintaining stability in employment agreements and the need for parties to utilise available dispute resolution processes before seeking termination.

The final orders of the court were that the application for termination of the Maritime Offshore Oil and Gas Employee Enterprise Agreement 2021 by GO Offshore Pty Ltd was dismissed. The court encouraged the parties to engage in further discussions to address the current issues within the framework of the existing agreement, highlighting the importance of maintaining constructive relations and seeking fair outcomes for all parties involved.

GO OFFSHORE Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established