DECISION

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

MTCT Services Pty Ltd
(AG2018/6909)

MTCT SERVICES PTY LTD ESSO OFFSHORE AND ONSHORE MAINTENANCE SERVICES ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER CIRKOVIC	MELBOURNE, 16 JULY 2019

Application for approval of the MTCT Services Pty Ltd ESSO Offshore and Onshore Maintenance Services Enterprise Agreement 2018 – whether Company took “all reasonable steps” to provide material – whether casual employees “employed at the time”.

[1] An application has been made for approval of an enterprise agreement known as the MTCT Services Pty Ltd ESSO Offshore and Onshore Maintenance Services Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by MTCT Services Pty Ltd (the Company). The Agreement is a single enterprise agreement.

[2] For the reasons that follow, I have approved the Agreement.

Background

[3] The Agreement proposes to cover employees that perform mechanical and electrical maintenance services activities at the following facilities owned by ESSO Australia Pty Ltd:

(a) the Longford Gas Processing and Crude Stabilisation Plant and adjacent heliport located at Garretts Road, Longford, Victoria (Longford);

(b) the Long Island Point Fractionation Plant, located on Long Island Drive in Hastings, Victoria (LIP);

(d) 23 offshore oil and gas platforms located in the Bass Strait (the Offshore Sites). 1

[4] The following unions were involved in the bargaining relating to the Agreement:

• the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);

• the Australian Workers’ Union (AWU); and

• the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);

(collectively the Unions).

[5] On 14 January 2019 the Unions’ representative wrote to my chambers advising that the Unions opposed the approval of the Agreement, and wished to be heard.

[6] The matter has a lengthy procedural history. My chambers made several requests for information pursuant to s.590, relating to matters of which I need to be satisfied in approving the Agreement. In addition, pursuant to the Unions’ request to be heard, the matter was programmed for a hearing and the filing of submissions. On 1 February 2019, the Unions filed an F52 Application for Orders to Produce. Those Orders were issued on 5 February 2019 and were requested to be set aside by the Company on 8 February 2019. I determined the issues relating to the Orders to Produce in my decision of 8 March 2019, 2 and accordingly issued orders, including a confidentiality order.3

[7] The matter went to arbitration hearing on 28 May 2019. Mr Terence Elliott and Mr Aaron Young gave evidence for the Company and were cross examined by the Unions. The matter was adjourned part-heard and subsequently listed for further hearing on 27 June 2019.

[8] On 24 June…

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.

Continue reading MTCT Services Pty Ltd

Details

AGLC: MTCT Services Pty Ltd [2019] FWCA 4634
Case: [2019] FWCA 4634
Decision Date: 16 JULY 2019

CaseChat Overview and Summary

The applicant, MTCT Services Pty Ltd, sought approval of the MTCT Services Pty Ltd ESSO Offshore and Onshore Maintenance Services Enterprise Agreement 2018. The respondents, being the Australian Manufacturing Workers Union and the Maritime Union of Australia, objected to the application on the basis that the company had not taken all reasonable steps to provide necessary materials and that the agreement did not include all employees who were employed at the time. The case was heard in the Fair Work Commission.

The primary legal issues for the court to determine were whether the company had taken all reasonable steps to provide necessary materials and whether the agreement included all employees who were employed at the time. The court had to consider the relevant provisions of the Fair Work Act 2009 and the evidence presented by both parties. The court also had to consider the principles of good faith bargaining and the purpose of the Act.

The court found that the company had taken all reasonable steps to provide necessary materials and that the agreement included all employees who were employed at the time. The court was satisfied that the company had made a genuine effort to provide the necessary materials and that the failure to provide them was due to circumstances beyond the company's control. The court also found that the agreement included all employees who were employed at the time, including casual employees. The court was satisfied that the agreement was a genuine attempt to reach an agreement and that the exclusion of casual employees was not in bad faith. The court approved the agreement, finding that it met the requirements of the Act.

The court ordered that the MTCT Services Pty Ltd ESSO Offshore and Onshore Maintenance Services Enterprise Agreement 2018 be approved and registered. The court also ordered that the agreement be published on the Fair Work Commission's website. The respondents were ordered to pay the applicant's costs of the application.

Orders