OGS Project Services Pty Ltd

In the matter of the application for approval of the OPS Enterprise Agreement 2022, the parties involved were OGS Project Services Pty Ltd and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The primary dispute centered around the approval of the agreement, specifically the award coverage and the standing of the union to be heard in the application. This case was heard in the Fair Work Commission.

The legal issues that the court had to decide upon were whether the scope of the discretion in section 590 allowed for the hearing to be limited to specific subjects when it came to the union's involvement in the approval of the agreement. Another issue was whether the agreement was genuinely agreed upon, and the effect on the genuineness of the agreement if the employer failed to identify the relevant modern award in the explanation provided to the employees. Additionally, the court had to determine if the failure to identify the relevant award could be rectified by means of an undertaking, and if there was an opportunity for the employer to consider the views on award coverage. The court also provided provisional views regarding the BOOT (Build, Own, Operate, Transfer) issues for the employer and the CFMEU to consider.

The court ruled that the exercise of discretion under section 590 could indeed be exercised in a manner that confines the subject matter on which the union would be heard. The court found that the agreement was genuinely agreed upon, and that the failure to identify the relevant award did not necessarily undermine the genuineness of the agreement. The court also determined that the failure to identify the relevant award could be rectified through an undertaking. Furthermore, the court held that there was an opportunity for the employer to consider the views on award coverage. In light of these findings, the court provided provisional views on the BOOT issues for the employer and the CFMEU to consider.

The final orders included the approval of the OPS Enterprise Agreement 2022, subject to the employer's undertaking to identify the relevant modern award to the employees, and the provisional views on BOOT issues to be considered by the employer and the CFMEU.