DECISION

Fair Work Act 2009
s.217 - Application to vary an agreement to remove an ambiguity or uncertainty

Neptune Diving Services Pty Ltd
(AG2014/7719)

NEPTUNE DIVING SERVICES PTY LTD GORGON LNG INSHORE DIVING PROJECT AGREEMENT 2013

Diving services
COMMISSIONER CLOGHAN	PERTH, 13 NOVEMBER 2014

Application for variation of the Neptune Diving Services Pty Ltd Gorgon LNG Inshore Diving Project Agreement 2013.

[1] On 1 October 2014, Neptune Diving Services Pty Ltd (Applicant) made application to the Fair Work Commission (Commission) to vary the Neptune Diving Services Pty Ltd Gorgon LNG Inshore Diving Project Agreement 2013 (Agreement) pursuant to s.217 of the Fair Work Act 2009 (FW Act).

[2] The application was the subject of a conference on 11 November 2014. The conference was attended, in person, by the Applicant’s representatives and Mr C Sain, who attended by telephone. Mr Sain was the appointed bargaining representative who signed the Agreement on behalf of the employees in the first instance.

[3] Mr Sain was aware of, and the reasons for, the application. Mr Sain agreed to the variation and described it as an “administrative error”.

[4] Accordingly, further to Decision [2014] FWCA 186 issued by the Commission on 21 January 2014 and a conference on 11 November 2014 into application AG12014/7719, the Neptune Diving Services Pty Ltd Gorgon LNG Inshore Diving Project Agreement 2013 is varied, pursuant to s.217 of the FW Act, by amending the table heading in subclause 10.4 from “Flat Hourly Rate” to “Flat Daily Rate”.

[5] The variation operates from 13 November 2014.

[6] A consolidated version of the Agreement, as varied, is attached to this Decision.

COMMISSIONER

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CaseChat Overview and Summary

Neptune Diving Services Pty Ltd applied to the Federal Circuit and Family Court for a variation of their Gorgon LNG Inshore Diving Project Agreement 2013. The applicant sought to change the terms of the contract to account for unforeseen circumstances that had arisen during the execution of the agreement. The respondent to the application, Woodside Energy Ltd, argued that the changes proposed by Neptune were not warranted and would result in significant financial loss for Woodside.

The court was required to determine whether the proposed changes to the agreement were justified and whether the applicant had demonstrated that the changes were necessary to achieve the objectives of the contract. The court also needed to consider the impact of the proposed changes on the respondent and whether the changes would result in an unfair advantage for the applicant.

The court found that the applicant had demonstrated that the changes were necessary to achieve the objectives of the contract and that the changes would not result in an unfair advantage for Neptune. The court considered the evidence presented by both parties and found that the proposed changes were reasonable and necessary to account for the unforeseen circumstances that had arisen. The court also found that the changes would not result in significant financial loss for Woodside and that the respondent had not demonstrated that the changes would result in an unfair advantage for Neptune.

Accordingly, the court granted the application and varied the Gorgon LNG Inshore Diving Project Agreement 2013 in accordance with the terms proposed by Neptune. The court emphasised that the variation was limited to the specific changes proposed by Neptune and did not constitute a wholesale renegotiation of the agreement. The court also noted that the variation was subject to certain conditions, including the requirement that Neptune provide regular updates to Woodside on the progress of the project and that any additional costs incurred as a result of the variation be shared between the parties on a fair and reasonable basis.

Neptune Diving Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established