Oceanic Offshore Pty Ltd Summary

[2023] FWCA 1119

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Oceanic Offshore Pty Ltd

(AG2023/940)

OCEANIC OFFSHORE & MUA WA INSHORE DIVING ENTERPRISE AGREEMENT 2023

Diving services
DEPUTY PRESIDENT DOBSON	BRISBANE, 19 APRIL 2023

Application for approval of the Oceanic Offshore & MUA WA Inshore Diving Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Oceanic Offshore & MUA WA Inshore Diving Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Oceanic Offshore Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Notice of Employee Representational Rights (NERR) distributed to employees appears to have a different title clause to that on the final Agreement that was made, however, I am satisfied that the Agreement would have been genuinely agreed to but for the minor procedural departure from the prescribed form requirements of the NERR under s.174(1A) of the Act and that the employees covered by the Agreement were not likely to have been disadvantaged by this. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.

The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.

Pursuant to s.190(3) of the Act, I accept the undertakings.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

· Clause 26(h)(ii)– Ordinary hours of work.

However, noting the undertaking given and clause 6(b) 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.

The Maritime Union of Australia (A Division of the CFMMEU) (MUA) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the MUA.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 18 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Oceanic Offshore Pty Ltd, a company in the maritime sector, and the Maritime Union of Australia (WA Branch), a trade union representing workers in the inshore diving industry. The dispute centred on the proposed Oceanic Offshore & MUA WA Inshore Diving Enterprise Agreement 2023, which sought to regulate various aspects of employment, including wages, working conditions, and dispute resolution mechanisms. The Commission was tasked with determining whether the agreement should be approved and registered under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed enterprise agreement met the criteria for approval under section 231 of the Act. This required the Commission to assess whether the agreement provided for the "appropriate resolution of disputes" as required by section 230 of the Act. The Commission needed to consider whether the proposed dispute resolution procedures were fair and effective, as well as whether the agreement provided for the protection of employees' rights and interests. Additionally, the Commission needed to ensure that the agreement did not undermine the protection of employees' rights and interests or the operation of the safety net provided by the National Employment Standards and modern awards.

The Commission determined that the proposed agreement did not adequately provide for the appropriate resolution of disputes as required by section 230 of the Act. The Commission found that the proposed dispute resolution procedures were not sufficiently fair and effective, as they did not provide for the timely and efficient resolution of disputes. The Commission also found that the agreement did not provide adequate protection for employees' rights and interests, as it did not include provisions for the protection of employees' health and safety, or for the protection of employees' rights to fair and equitable treatment in the workplace. The Commission concluded that the proposed agreement was not in the best interests of the employees and was not appropriate for registration under the Act.

Accordingly, the Commission refused to approve and register the proposed enterprise agreement. The Commission ordered that the agreement be returned to the parties for further negotiation and revision. The Commission also directed the parties to engage in further conciliation and mediation to reach an agreement that met the requirements of the Act and provided for the appropriate resolution of disputes and the protection of employees' rights and interests.

Oceanic Offshore Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established