MWOG Pty Ltd

[2017] FWCA 4180

[2017] FWCA 4180

The attached document replaces the document previously issued with the above code on 11 August 2017.

The preamble has been amended to include the original title of the agreement.

Associate to Deputy President Binet

Dated 16 August 2017

[2017] FWCA 4180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.210—Enterprise agreement

MWOG Pty Ltd
(AG2017/2582)

MCRJV PTY LTD ENTERPRISE AGREEMENT 2016

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 11 AUGUST 2017

Application for variation of the MCRJV Pty Ltd Enterprise Agreement 2016.

[1] On 30 June 2017, the Fair Work Commission (FWC) received an application (Application) from MWOG Pty Ltd (MWOG) for the approval of a variation of the MCRJV Pty Ltd Enterprise Agreement 2016 (Agreement) pursuant to section 210 of the Fair Work Act 2009 (FW Act).

[2] The Agreement is a single-enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 1 March 2021. The Agreement was approved on 1 March 2017, and commenced operation on 8 March 2017. The variation to the Agreement was made on 28 June 2017.

[3] The parties to the Agreement are MCRJV Pty Ltd and the employees of MCRJV Pty Ltd employed performing maintenance work in the classifications specified in the Agreement.

[4] The reference instrument is the Hydrocarbons Industry (Upstream) Award 2010 (Award).

[5] The variation to the Agreement seeks to amend the company name from MCRJV Pty Ltd as it current appears, to MWOG Pty Ltd. It also seeks to vary wages, allowances and loadings, and classifications.

[6] Sections 210 and 211 of the FW Act set out the conditions which must be met for an agreement to be varied by the Commission. Section 210 of the FW Act states:

“210 Application for the FWC’s approval of a variation of an enterprise agreement

Application for approval

(1) If a variation of an enterprise agreement has been made, a person covered by the agreement must apply to the FWC for approval of the variation.

Material to accompany the application

(2) The application must be accompanied by:

(a) a signed copy of the variation; and

(b) a copy of the agreement as proposed to be varied; and

(c) any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the variation is made; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

Signature requirements

(4) The regulations may prescribe requirements relating to the signing of variations of enterprise agreements.”

[7] Section 211(1) of the FW Act states:

“211 When the FWC must approve a variation of an enterprise agreement

Approval of variation by the FWC

(1) If an application for the approval of a variation of an enterprise agreement is made under section 210, the FWC must approve the variation if:

(a) the FWC is satisfied that had an application been made under subsection 182(4) or section 185 for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186; and

(b) the FWC is satisfied that the agreement as proposed to be varied would not specify a date as its nominal expiry date which is more than 4 years after the day on which the FWC approved the agreement;

unless the FWC is satisfied that there are serious public interest grounds for not approving the variation.

Note: The FWC may approve a variation under this section with undertakings (see section 212).”

[8] In accordance with subsection 210(2)(c) of the FW Act, the Application was supported by statutory declaration in support of the variation by Mr Tyler Clews (Mr Clews), Senior Industrial Relations Advisor at MWOG, outlining the steps taken by MWOG to ensure the variation was genuinely approved (Clews Statutory Declaration).

[9] A Certificate of Registration on Change of Name issued by the Australian Securities and Investment Commission (Certificate) was filed by MWOG to demonstrate that it had standing to make the Application pursuant to section 210(1) of the FW Act. The Certificate confirmed that, on 31 March 2017, MCRJV Pty Ltd changed its name to MWOG Pty Ltd.

[10] A signed copy of the proposed variation was filed by MWOG as required by section 210(2)(a) of the FW Act and is attached to this decision at Annexure A.

[11] A consolidated version of the Agreement, as varied, was filed by MWOG as required by subsection 210(2)(b) of the FW Act and is attached to this decision.

[12] I am satisfied that each of the requirements of section 210 of the FW Act as are relevant to the Application for approval have been met.

[13] Pursuant to section 211 of the FW Act, in order to approve a variation of an enterprise agreement, the FWC needs to be satisfied that,had an application been made under subsection 182(4) or section 185 of the FW Act for the approval of the agreement as proposed to be varied, the FWC would have been required to approve the agreement under section 186 of the FW Act. This would require thatthe variation was genuinely agreed to by the employees covered by the Agreement, the variation is made in accordance with the FW Act, and that there are no serious public interest grounds for not approving the variation.

[14] On 14 July 2017, MWOG was directed (Directions) to file with the FWC a copy of the proposed variation, evidence as to whether employees covered by the Agreement are better off overall under the Award or the Agreement as proposed to be varied (BOOT Evidence), and submissions in relation to whether there are any serious public interest grounds for not approving the variation (Submissions).

[15] MWOG filed as BOOT evidence comparative tables for Schedule 2 - Offshore Core Employees and Schedule 3 - Supplementary Employees, outlining the differences between salary, allowances and other benefits provided under the varied Agreement as compared to the Award. A BOOT analysis conducted by the FWC reveals that Schedule 1 – Offshore Core Employees are 39% - 74% better off under the varied Agreement, Schedule 2 – Offshore Core Employees are 102% - 152% better off under the varied Agreement, and Schedule 3 – Supplementary Employees are 102% - 123% better off under the varied Agreement as compared to the Award.

[16] MWOG submitted that there were no public interest grounds preventing the approval of the variation.

[17] MWOG were also directed to provide a copy of the Application, the Certificate, the proposed variation, the BOOT Evidence, the Submissions and the Directions to all employees whose terms of employment are regulated by the Agreement. The Directions contained an invitation for any employee whose terms of employment are regulated by the Agreement, who wished to be heard with respect to the Application, to contact my Chambers by close of business on Thursday 4 August 2017.

[18] On 20 July 2017, Mr Clews confirmed in a statutory declaration that a copy of the above materials had been provided to all employees currently covered by the Agreement.

[19] No applications to be heard were received from any employees of MWOG on or before close of business on Thursday 4 August 2017.

[20] Based on the material that is before me, and in the absence of any request from an employee to heard, I am satisfied that, had the Application been made under section 185 of the FW Act for the approval of the Agreement as proposed to be varied, I would have been required to approve the Agreement under section 186 of the FW Act.

[21] I am satisfied that there are no serious public interest grounds for not approving the variation.

[22] Having been satisfied that sections 210 and 211 of the FW Act have been met, the variation of the Agreement is approved and will operate from the date of this decision.

DEPUTY PRESIDENT

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ANNEXURE A