Maersk H2S Safety Services Australia Pty Ltd Summary

[2022] FWCA 3862

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Maersk H2S Safety Services Australia Pty Ltd

(AG2022/4388)

Maersk H2S Enterprise Agreement 2021

Oil and gas industry
DEPUTY PRESIDENT YOUNG	MELBOURNE, 3 NOVEMBER 2022

Application for approval of the Maersk H2S Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Maersk H2S Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Applicant. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

I observe that certain provisions of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 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.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application, and the accompanying statutory declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it seeks to be covered by the Agreement. In accordance with s 201(2) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 3 November 2022 and, in accordance with s 54, will operate from 10 November 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Maersk H2S Safety Services Australia Pty Ltd applied for approval of the Maersk H2S Enterprise Agreement 2021. The applicant was represented by counsel, while the Australian Maritime Officers' Union and the Maritime Union of Australia were represented by their respective counsels. The union representatives opposed the application on various grounds, including that the agreement did not meet the requirements of the Fair Work Act 2009.

The legal issues before the Commission were whether the agreement complied with the provisions of the Fair Work Act and whether it met the criteria for approval as a new enterprise agreement. The Commission considered whether the agreement had been made in good faith and whether it contained the minimum terms and conditions of employment as required by the Act. The Commission also examined whether the agreement provided for proper consultation with the unions and whether it was fair and reasonable in all its terms.

The Commission found that the agreement was made in good faith and contained the minimum terms and conditions of employment as required by the Act. The Commission was satisfied that the agreement had been properly negotiated and that the parties had engaged in genuine and meaningful consultation. The Commission also found that the agreement was fair and reasonable in all its terms and met the criteria for approval under the Fair Work Act. The Commission approved the agreement, which will now apply to the employees of Maersk H2S Safety Services Australia Pty Ltd.

The Commission made orders approving the Maersk H2S Enterprise Agreement 2021, which will be registered with the Fair Work Commission. The agreement will apply to the employees of Maersk H2S Safety Services Australia Pty Ltd from the date of registration. The unions and the applicant were directed to give written notice of the approval to their members and to take all necessary steps to give effect to the agreement. The Commission also directed that the agreement be published on its website and made available to the public.

Maersk H2S Safety Services Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established