OSM Australia Pty Ltd

[2025] FWCA 1445

[2025] FWCA 1445

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

OSM Australia Pty Ltd

(AG2025/913)

OSM AUSTRALIA PTY LTD - WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION PROJECTS CATERING AGREEMENT 2025

Building, metal and civil construction industries
COMMISSIONER LIM	PERTH, 1 MAY 2025

Application for approval of the OSM Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Catering Agreement 2025

Introduction

1. An application has been made for approval of a greenfields agreement known as the  OSM Australia Pty Ltd - Western Australia and Northern Territory Offshore Construction Projects Catering Agreement 2025 (the Agreement). The application was made by OSM Australia Pty Ltd (the Applicant) pursuant to s.185 of the Fair Work Act 2009 (Act).

1. This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union (AWU) are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied that it is in the public interest to approve the Agreement.

Definition of a Shiftworker

1. Clause 11.11 of the Agreement provides that if an Employee is a shiftworker for the purpose of the National Employment Standards (NES) then the Employee is a shiftworker under this Agreement for the purposes of the NES. However, unlike the Award, the term ‘shiftworker’ is not otherwise described or defined in the Agreement.

1. The Applicant provided an undertaking to address this issue.

Compassionate Leave

1. Clause 24.1 of the Agreement appears to be inconsistent with the NES. This clause provides that an Employee who is rostered on shift will be entitled to a maximum of four (4) full days' leave ashore with entitlement at twelve (12) hours per day at the offshore daily rate of pay, on each occasion of the death of a spouse, father, mother, child, brother or sister including stepbrother and stepsister, father-in-law or mother-in-law. In this Clause, the term ‘spouse’ includes a de facto partner. This Clause appears to provide a more restrictive definition of immediate family than s.12 of the Act, which also includes for example grandparents of an employee or their spouse or de facto partner. The Agreement also does not provide for compassionate leave on the death of a member of an employee’s household, or where a member of an employee’s immediate family or household contracts or develops an illness or sustains an injury that poses a threat to their life, where a child that would have been a member of their immediate family or household is stillborn or where the employee or their spouse or de facto partner has a miscarriage per s.104(1)(a) of the Act.

1. Given the NES precedence clause at clause 7.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

Section 190 Undertakings

1. The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

Section 183 Bargaining Representatives

1. Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the AWU and that the Agreement covers this organisation.

Approval

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 8 May 2025. The nominal expiry date of the Agreement is 11 November 2028.

COMMISSIONER

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Annexure A