OSM Australia (Inshore) Pty Ltd T/A OSM Summary

[2025] FWCA 456

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

OSM Australia (Inshore) Pty Ltd T/A OSM

(AG2025/172)

OSM AUSTRALIA (INSHORE) PTY LTD AQUACULTURE ENTERPRISE AGREEMENT 2025

Aquaculture
DEPUTY PRESIDENT O'KEEFFE	PERTH, 5 FEBRUARY 2025

Application for approval of the OSM Australia (Inshore) Pty Ltd Aquaculture Enterprise Agreement 2025

An application has been made for approval of an enterprise agreement known as the OSM Australia (Inshore) Pty Ltd Aquaculture Enterprise Agreement 2025 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by OSM Australia (Inshore) Pty Ltd T/A OSM (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 3 November 2023 and the Agreement was made on 17 January 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Australian Maritime Officers Union and the Australian Institute of Marine and Power Engineers, who were bargaining agents, expressed the view that the Agreement passes the BOOT. The Construction, Forestry and Maritime Employees Union - The Maritime Union of Australia Division (collectively, the unions) did not express a view as to whether the Agreement passes the BOOT.

Pursuant to s205A(2) of the Act, the workplace delegates’ rights term prescribed by the Ports, Harbours and Enclosed Water Vessels Award 2020 has been inserted as a term of the Agreement.

The unions lodged Form F18 statutory declarations 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 unions.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2025. The nominal expiry date of the Agreement is 4 February 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves OSM Australia (Inshore) Pty Ltd, trading as OSM, which sought approval for their proposed aquaculture enterprise agreement. The application was made to the Fair Work Commission. The primary dispute centred around the terms and conditions outlined in the proposed agreement, which needed to be assessed for compliance with the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the agreement provided for fair and reasonable terms and conditions of employment for the employees covered by the agreement.

The legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval under the Fair Work Act. Specifically, the Commission had to consider if the agreement provided for fair and reasonable terms and conditions, and whether it complied with the relevant provisions of the Act. This included assessing whether the agreement was not less favourable than the applicable national workplace determination or registered agreement, and whether it provided for appropriate processes for the resolution of workplace disputes.

In delivering its decision, the Commission noted that the proposed agreement provided for terms and conditions that were fair and reasonable. It observed that the agreement contained provisions for minimum rates of pay, entitlements, and other conditions of employment that were consistent with the applicable national workplace determination. Furthermore, the Commission found that the agreement provided for appropriate mechanisms for the resolution of workplace disputes, including provisions for conciliation and arbitration. Based on these findings, the Commission approved the proposed aquaculture enterprise agreement, determining that it met the requirements for approval under the Fair Work Act.

The Fair Work Commission approved the OSM Australia (Inshore) Pty Ltd Aquaculture Enterprise Agreement 2025, finding that it provided for fair and reasonable terms and conditions of employment and complied with the relevant provisions of the Fair Work Act. This decision ensures that the employees covered by the agreement will have a fair and reasonable enterprise agreement in place.

OSM Australia (Inshore) Pty Ltd T/A OSM

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established