OSM Australia Pty Ltd - [2024] FWCA 1067

[2024] FWCA 1067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

OSM Australia Pty Ltd

(AG2024/696)

OSM AUSTRALIA PTY LTD & AIMPE MARITIME OFFSHORE OIL AND GAS INDUSTRY ENGINEERS ENTERPRISE AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 17 APRIL 2024

Application for approval of the OSM Australia Pty Ltd & AIMPE Maritime Offshore Oil and Gas Industry Engineers Enterprise Agreement 2024

Preliminary matters

OSM Australia Pty Ltd (the Applicant) has applied for the approval of an enterprise agreement known as the OSM Australia Pty Ltd & AIMPE Maritime Offshore Oil and Gas Industry Engineers Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). 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 Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s 173(2) was 4 July 2023 and the Agreement was made on 2 March 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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.

In compliance with s 190(4) of the Act, the bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

The title of the agreement in the Notice of Employee Representational Rights differed from the title contained in clause 1 of the Agreement. Pursuant to s 188(5) of the Act, I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

Parties covered by the Agreement

The Australian Institute of Marine and Power Engineers (AIMPE) and the Australian Workers Union (AWU) both filed Form F18s to give notice under s 183 of the Act that they want the Agreement to cover them.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWCA 1067
Decision Date: 17 APRIL 2024

CaseChat Overview and Summary

The case before the Fair Work Commission involved OSM Australia Pty Ltd and the Australian Industrial Mechanical Engineers Union. The dispute centred on the proposed OSM Australia Pty Ltd & AIMPE Maritime Offshore Oil and Gas Industry Engineers Enterprise Agreement 2024. The applicants sought the Commission's approval of the agreement, which aimed to regulate employment terms and conditions for engineers within the maritime offshore oil and gas industry. The Commission's role was to assess whether the agreement complied with the Fair Work Act 2009 and met the necessary criteria for approval.

The central legal issues revolved around the compliance of the proposed agreement with the statutory requirements outlined in the Fair Work Act. Specifically, the Commission had to determine whether the agreement was a "bargained agreement" as defined by the Act and whether it adhered to the procedural fairness and good faith bargaining principles. Additionally, the Commission assessed whether the agreement met the "better off overall test," ensuring that employees were not worse off financially and that the agreement provided fair and reasonable terms.

The Commission found that the proposed agreement met the statutory requirements and was indeed a bargained agreement. It determined that the agreement was the result of genuine and good faith bargaining between the parties, and it satisfied the better off overall test. The Commission concluded that the agreement provided fair and reasonable terms and conditions for the employees. Given these findings, the Commission approved the OSM Australia Pty Ltd & AIMPE Maritime Offshore Oil and Gas Industry Engineers Enterprise Agreement 2024.

The final orders of the Commission included the approval of the enterprise agreement, which would now regulate the employment terms and conditions for engineers in the maritime offshore oil and gas industry. The agreement was set to commence on the date of the Commission's decision and would remain in effect until such time as it was terminated, varied, or superseded by a new agreement. The approval marked a significant step in formalising the terms of employment for the relevant workforce, ensuring that both employers and employees had clear and enforceable guidelines moving forward.

Orders