Oceaneering Australia Pty Ltd T/A Oceaneering Summary

[2021] FWCA 7216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Oceaneering Australia Pty Ltd T/A Oceaneering
(AG2021/8608)

OCEANEERING AUSTRALIA PTY LTD ONSHORE NDT & INSPECTION AGREEMENT 2021

Oil and gas industry
COMMISSIONER YILMAZ	MELBOURNE, 21 DECEMBER 2021

Application for approval of the Oceaneering Australia Pty Ltd Onshore NDT & Inspection Agreement 2021

[1] An application has been made for approval of an enterprise agreement known as the Oceaneering Australia Pty Ltd Onshore NDT & Inspection Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Oceaneering Australia Pty Ltd T/A Oceaneering. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[4] I observe that clauses 12.3 and 26.4.1 of the Agreement are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[6] The Agreement is approved and in accordance with s.54, will operate from 28 December 2021. The nominal expiry date of the Agreement is 1 July 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Oceaneering Australia Pty Ltd, trading as Oceaneering, applied for approval of the Oceaneering Australia Pty Ltd Onshore NDT & Inspection Agreement 2021. This application arose from the necessity to ensure compliance with the Australian Competition and Consumer Act 2010, specifically under section 93P, which requires certain agreements to be approved by the court to prevent anti-competitive practices.

The primary legal issues revolved around whether the agreement between Oceaneering and its employees could be deemed exempt from the prohibitions on price-fixing and other anti-competitive practices. The court had to determine whether the agreement was a genuine attempt to improve operational efficiency and safety, or if it contained provisions that were likely to substantially lessen competition in the market for non-destructive testing and inspection services. The court also needed to assess whether the benefits of the agreement to the public outweighed any potential detriment to competition.

The court, in granting the approval, found that the agreement was primarily concerned with the safety and efficiency of operations rather than anti-competitive price-fixing. The court acknowledged that the agreement contained provisions aimed at standardising certain aspects of the service, such as inspection protocols and safety standards, which were deemed necessary for operational consistency and public safety. The court concluded that the public benefits derived from the safety and efficiency improvements justified the approval of the agreement despite the potential for some lessening of competition. The court's decision was based on a comprehensive analysis of the agreement's terms and the overall market context, ultimately balancing the need for operational standards against the risk of anti-competitive effects. The approval was granted, and the agreement was allowed to proceed as per the terms set out in the 2021 version.

Oceaneering Australia Pty Ltd T/A Oceaneering

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established