OSM Australia Pty Ltd
[2024] FWCA 1067
•17 APRIL 2024
| [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.
The AIMPE objected to the AWU’s Form F18 on the basis that the AWU did not participate in the negotiations for the Agreement and the AWU did not have any members employed by the Applicant during the negotiations. Further, if the AWU did have members, those members are excluded from the AWU’s coverage if they are also members of the AIMPE. The AIMPE relies on the following part of the AWU’s rules in in support of this argument (AWU Hydrocarbons Rule):
“PART 2 – WHO CAN JOIN THE UNION
RULE 5 – ELIGIBILITY FOR MEMBERSHIP
SECTION 1
PART A
(1) Every bona fide worker, male or female, engaged in manual or mental labour in or in connection with any of the following industries or callings, namely:… the search and/or drilling for hydrocarbons, the production, processing and transmission of hydrocarbons, the prospecting, surveying, exploration and drilling for minerals and metals (except as to members of organisations in the shipping industry)…” (emphasis added)
It is sufficient to say that the AWU contests the AIMPE’s interpretation of the above rule.
Following a case management conference on 3 April 2024, I received from the Applicant a confidential list of its employees covered by the Agreement at the relevant time. I also received from the AWU and the AIMPE confidential lists of their members employed by the Applicant and covered by the Agreement, along with the date each member joined the relevant union. On 3 April 2024, after reviewing and comparing the lists, I informed the parties that I was satisfied that the AWU had at least one member employed by the Applicant and covered by the Agreement, who does not have dual membership with the AIMPE.
I directed the parties to confirm by 12pm AWST, 5 April 2024, whether there were any remaining objections to the AWU’s Form F18, and to provide any submissions and materials in support of any objections.
The AIMPE did not file any further objections. The Applicant filed a brief submission on 5 April 2024 stating that:
“OSM objects to the F18 application by the AWU. This is due to the fact that the AWU does not have coverage of the classifications within the proposed agreement. Those classifications worm outside of the AWU rules in our opinion.
OSM is not in the industry of searching and/or drilling for hydrocarbons or the production, processing and transmission of hydrocarbons.
Our view is that supplying services to clients in the oil and gas industry does not mean that OSM works within or is connected with the industries of searching, drilling for, or producing and processing hydrocarbons, or their transmission.”
The Applicant did not file any evidence or material in support of this submission.
In response, the AWU filed a brief submission on 5 April 2024 to the following effect:
(a)The AWU has broad coverage of work in or in connection with the hydrocarbons industry. This is an industry rule, not a craft rule. This provides the AWU with coverage of all workers in or in connection with the hydrocarbons industry, regardless of classification or calling.[1]
(b)The Agreement specifically applies to work performed in the oil and gas industry. The title of the Agreement includes the term “Maritime Offshore Oil and Gas Industry”. This is defined in the Agreement at clause 3.1 as follows:
““Maritime Offshore Oil and Gas Industry” means the operation, utilisation, control, maintenance, repair and services of Vessels (as defined) in or in connection with offshore oil and gas operations, which strictly relate to the exploration, extraction and production of hydrocarbons offshore.”
(c)In the event that the Applicant’s objection has merit, the AWU has occupational coverage of engineers in any industry by virtue of the rules of the former Australasian Society of Engineers, which is one of the unions in the AWU’s amalgamation history. This can be seen at Rule 5, Section 2, Part B (6) of the AWU’s rules (AWU Engineers Rule), which provides:
“Without limiting the generality of the foregoing or being limited in any way by the foregoing, persons engaged in any of the following Trades or Branches of Trades shall be eligible for membership of the Union:
(a) Engineers, Fitters, Turners, Water Meter Fitters, Tool and Gauge Makers, Die Sinkers, Mechanical and/or Scientific Instrument Makers, Scale Makers and Adjusters, Safe Makers, Pipe Fitters, Motor Mechanics, and Tuners and Testers, Cycle and Motor Cycle Mechanics, Typewriter Mechanics, Patternmakers, Coppersmiths, Brassfinishers, Engineering and General Forgers, Forge Furnacemen, Blacksmiths, Shipsmiths, Angle-Ironsmiths, Springsmiths, Spring Fitters, Welders, Oxy-Acetylene Cutters, Locksmiths, Mechanical Draughtsmen, Millwrights, Iron and Steel Rollers, Electrical Fitters, Electrical Mechanics, Machine Makers, Milling Machinists, Planers, Slotters, Borers, Shapers, Drillers, Polishers, Grinders and Lappers, Bolt and Nut Machinists, Agricultural Implement Makers, Panel Beaters (restricted to Panel Beaters employed in the Australian Capital Territory by the Department of the Capital Territory in the Transport Workshop), Gunsmiths, Technicians (except persons who are members or eligible for membership of the Association of Draughting, Supervisory and Technical Employees other than any person or persons who may be eligible for membership of the Union pursuant to any other Part of this Rule) and any other Machine Operators or Mechanics employed in the Engineering, Locomotive, Shipbuilding, Rolling Stock, Aircraft, Munition and Iron Trades, or in any other Industry.” (emphasis added)
Consideration
As there was no evidence tendered and no evidentiary contests, I put my view to the parties that this matter could be dealt with on the papers. There was no objection to this.
Section 183 of the Act provides that an employee organisation that was a bargaining representative for a proposed enterprise agreement may notify the FWC in writing that it wants the enterprise agreement to cover it. The relevant definition for a bargaining representative in this matter is s 176(1)(b), which provides as follows:
“176 Bargaining representatives
(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a supported bargaining authorisation is in operation--the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2);…”
AIMPE did not provide any explanation as to how their objection that the AWU was not present during the negotiations is grounded in s 176 or any other part of the Act. I do not accept AIMPE’s objection in this regard.
I accept the AWU’s submission that it is a longstanding principle in the interpretation of union eligibility rules that they should be broadly construed.[2] However, the AWU’s rules are clear that they can cover engineers in any industry.
Under clause 4.1(c) of the Agreement, the Agreement covers employees employed by the Applicant to work in any of the classifications contained in the Agreement. Clause 5 of the Agreement provides that the Applicant has developed the Agreement to cover its Engineer Officers. Schedule One of the Agreement sets out the wage rates for the classifications of Chief Engineer, First Engineer, Electrical Technical Officer and Second Engineer. It is hard to see how these classifications do not fall under the AWU’s Engineers Rule.
I am satisfied that at the time the Agreement’s access period began, the AWU had at least one member who was:
(a)employed by the Applicant;
(b)covered by the scope of the Agreement;
(c)not a member of AIMPE; and
(d)entitled to be a member of the AWU by virtue of Rule 5, Section 2, Part B (6) of the AWU’s rules.
Given the above, it is not necessary for me to determine the AIMPE’s contention that the AWU Hydrocarbons Rule has a carve out where the member is also a member of the AIMPE.
It is also not necessary for me to consider the Applicant’s and AWU’s arguments regarding the AWU’s coverage in the hydrocarbons industry.
Based on the material before me, I am satisfied that both the AIMPE and the AWU were bargaining representatives for the Agreement pursuant to s 176 of the Act. In accordance with s 201(2), and based on the declarations provided by the unions, I note that the unions are covered by the Agreement.
The Agreement was approved on 17 April 2024 and, in accordance with s 54, will operate from 24 April 2024. The nominal expiry date of the Agreement is 17 April 2028.
COMMISSIONER
ANNEXURE A
[1] R v Watson; Ex parte Australian Workers’ Union [1972] HCA 72 at p79 per Barwick CJ; Harnischfeger of Australia Pty Ltd v CFMEU [2005] AIRC 890 at [85].
[2] R v Isaac; Ex Parte Transport Workers’ Union of Australia (1985) 159 CLR 323 at p340; CFMEU v CSBP Limited [2012] FCAFC 48 at [48],
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