OSM Australia Pty Ltd

[2024] FWCA 3139

[2024] FWCA 3139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a greenfields agreement

OSM Australia Pty Ltd

(AG2024/2910)

OSM AUSTRALIA PTY LTD AND THE MARITIME UNION OF AUSTRALIA DIVISION PROPELLED DREDGING ENTERPRISE AGREEMENT 2024

Dredging industry
COMMISSIONER CONNOLLY	MELBOURNE, 29 AUGUST 2024

Application for approval of the OSM Australia Pty Ltd and the Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the OSM Australia Pty Ltd and the Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2024 (the Agreement) pursuant to s.182(3) of the Fair Work Act 2009 (the Act) by OSM Australia Pty Ltd. The agreement is a single enterprise agreement that is a greenfields agreement.

1. The matter was allocated to my Chambers on 13 August 2024.

1. On 20 August 2024, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

1. There are three National Employment Standards (NES) issues that require comment:

·   Personal/carer’s leave – payment: Clause 20.3 states that where an employee’s absence is for more than 7 days and up to 3 months, payment will be at 75% of the employee’s salary. This appears inconsistent with s.99 of the Act which requires the employer to pay at the employee’s base rate of pay. Such provision potentially restricts and employees’ entitlement for personal/carer’s leave. It should be noted that at clause 20.1 of the agreement, an employee is entitled to 10 days of personal/carer’s leave.

·   Compassionate leave – stillbirth consideration: The entitlement to compassionate leave provided by Clause 36 does not appear to be triggered after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

·   Notice of termination – failure to give notice: Clause 22.6 states that if the employee fails to give notice the employment may be terminated by the payment or forfeiture of that amount. However, this may reduce an employee’s NES entitlement payable on termination.

1. Clause 7.6 of the Agreement acts as an effective NES precedence clause, in that it states that “The National Employment Standards (NES) will apply at all times to the Employees covered by this Agreement. Where the NES provides a benefit not stated in this Agreement then the benefit of the NES will apply. Where the NES provides a higher benefit than that set out in this Agreement, the lower benefit contained in this Agreement shall be null and void and the benefit set out in the NES shall apply”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. In accordance with s.187(5)(a) of the Act, I am satisfied that the Construction, Forestry and Maritime Employees Union (CFMEU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

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

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. I am satisfied that it is in the public interest to approve the Agreement.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 28 March 2028.

COMMISSIONER

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