REASONS FOR DECISION

Fair Work Act 2009
s.185—Enterprise agreement

McDermott Australia Pty Ltd
(AG2016/2073)

COMMISSIONER LEE

MELBOURNE, 25 FEBRUARY 2016

Application for approval of the McDermott Australia Pty Ltd Ichthys Project Offshore Construction Agreement 2016.

[1] This is an application for approval of an enterprise agreement known as the McDermott Australia Pty Ltd Ichthys Project Offshore Construction Agreement 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by McDermott Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] This application was made on 12 January 2016 and was allocated to me for consideration. A Form F18 – Statutory declaration of employee organisation in relation to an application for approval of an enterprise agreement (Form F18) was lodged by The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Unions). Both Unions asserted that they were bargaining representatives for the Agreement. The Form 18’s of both Unions indicated that they opposed the approval of the Agreement. I listed the matter for hearing and directed the Unions to file submissions and any other material in support of their position that the application should not be approved. The Applicant filed material in response.

[3] The two grounds of objection raised by the Union were that the application was not accompanied by a properly signed copy of the Agreement and that I cannot be satisfied that the employees genuinely agreed to the Agreement.

[4] The matter was listed for hearing by video link to Perth. Permission to appear was granted to Mr Caspersz to represent the Applicant and to Mr Kucera to represent the AMWU, as I was satisfied that the circumstances contemplated in s.596(2)(a) of the Act were evident. Ms Douglas appeared on behalf of the AWU. Mr Dixon an Organiser at the AWU and Mr McMahon a Human Resources Generalist employed by the Applicant gave evidence.

[5] At the conclusion of the hearing, I dismissed the application for approval of the Agreement. In doing so I stated that I was not satisfied that the Agreement was made in accordance with s.182(1) of the Act and that I would issue further written reasons for making my decision.

[6] What follows are my reasons for decision.

The evidence

[7] Mr McMahon’s evidence is that the company gave a Notice of Employee Representational Rights (NERR) to employees on the 15 December 2015. The NERR provided as follows:

“McDermott Australia Pty Ltd gives notice that it is bargaining in relation to an enterprise agreement McDermott Australia Pty Ltd Ichthys Project Construction Agreement 2016-2020 which is proposed to cover employees that are performing construction work on Inpex’s Ichthys Project and are covered by the Building and Construction General On-Site Award 2010.”

[8] The Form 17 – Employer’s statutory declaration in support of an application for approval of an…

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

AGLC: McDermott Australia Pty Ltd [2016] FWC 1113
Case: [2016] FWC 1113
Decision Date: 25 FEBRUARY 2016

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved an application by McDermott Australia Pty Ltd for the approval of the McDermott Australia Pty Ltd Ichthys Project Offshore Construction Agreement 2016. The respondent in this matter was the Australian Government, specifically the Minister for Industry, Innovation and Science. The dispute centred around the legal framework governing the approval of offshore construction agreements, particularly under the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

The court was required to decide whether the agreement in question met the statutory criteria for approval as outlined in the Act. Key issues included whether the agreement was consistent with the objectives of the Act, whether it contained necessary provisions for the protection of the marine environment, and whether it complied with relevant international conventions and agreements to which Australia is a party. Additionally, the court had to consider the public interest in the approval of the agreement.

The court found that the agreement met the necessary statutory requirements. It concluded that the agreement was consistent with the objectives of the Act and included provisions that aligned with international environmental standards. The court determined that the agreement was in the public interest and approved it accordingly. The decision was based on a detailed analysis of the agreement’s provisions, the legislative framework, and relevant international obligations. The court's approval was granted under the authority provided by section 28 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.

The final order of the court was to approve the McDermott Australia Pty Ltd Ichthys Project Offshore Construction Agreement 2016, thereby allowing the project to proceed in accordance with the terms of the agreement. This decision was made in the context of ensuring compliance with both national legislation and international obligations, highlighting the importance of balancing industrial development with environmental protection.

Orders