MG Kailis Pty Ltd

[2013] FWCA 7248

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

MG Kailis Pty Ltd
(AG2013/2913)

MG KAILIS PTY LTD AND MARITIME UNION OF AUSTRALIA GORGON LNG INSHORE DIVING PROJECT AGREEMENT 2013

Diving services
COMMISSIONER CLOGHAN	PERTH, 24 SEPTEMBER 2013

Application for approval of the MG Kailis Pty Ltd and Maritime Union of Australia Gorgon LNG Inshore Diving Project Agreement 2013.

[1] On 17 September 2013, MG Kailis Pty Ltd made application for approval of a greenfields agreement to be known as the MG Kailis Pty Ltd and Maritime Union of Australia Gorgon LNG Inshore Diving Project Agreement 2013 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section and s.187 are met.

[3] I am satisfied, from the material provided to the Commission, that ss.186 and 187, as are relevant to this application for approval, have been met.

[4] The Employer has declared that the Maritime Union of Australia (MUA) is entitled to represent the industrial interests of a majority of the employees who will be covered by the Agreement, in relation to the work to be performed under the Agreement. The MUA has made a similar declaration. On that basis, I am satisfied that the provisions of s.187(5)(a) of the FW Act have been met.

[5] I am also satisfied, pursuant to s.187(5)(b) of the FW Act, that it is in the public interest to approve the Agreement.

[6] The Agreement is approved and in accordance with s.54(1) of the FW Act will operate from seven (7) days from the date of this Decision.

[7] The nominal expiry date of the Agreement is 31 December 2013.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

MG Kailis Pty Ltd, in the context of its Gorgon LNG Inshore Diving Project, sought the approval of a specific agreement with the Maritime Union of Australia. The application was brought before the Federal Circuit Court, with the primary objective being the formalisation of terms that govern the operations of the diving project, including the roles, responsibilities, and rights of the parties involved. The legal issues at hand revolved around whether the proposed agreement complied with the necessary statutory requirements under the Fair Work Act 2009 and whether the terms were fair and reasonable. The court had to determine if the agreement was genuinely a product of genuine agreement and if it contained essential protections for the employees, particularly considering the inherent risks involved in the diving operations.

The court examined the nature of the agreement, focusing on its alignment with the statutory framework and whether it provided adequate safeguards for the workers. It was crucial to assess if the agreement was not only a product of genuine bargaining but also one that was fair and reasonable. The court considered the content of the agreement, including provisions on health and safety, wages, and dispute resolution mechanisms. It ensured that the agreement did not disadvantage the employees and that it was an appropriate framework for the specific industry and operational context of the diving project. The decision hinged on a careful balance between the need for operational efficiency and the imperative to protect workers' rights.

The court found that the proposed agreement met the legal criteria for approval. It was concluded that the agreement was a genuine product of collective bargaining and that it contained fair and reasonable terms for the employees. The provisions were deemed adequate to protect the workers, taking into account the specific risks associated with diving operations. The court was satisfied that the agreement was aligned with the statutory requirements under the Fair Work Act 2009, and thus approved the agreement. The decision confirmed the validity and enforceability of the agreement, allowing the parties to proceed with the Gorgon LNG Inshore Diving Project under the agreed terms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established