Osm Australia Pty Ltd

[2024] FWCA 944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Osm Australia Pty Ltd

(AG2024/225)

APPLICATION FOR APPROVAL OF THE OSM AUSTRALIA PTY LTD MARITIME OFFSHORE OIL AND GAS INDUSTRY MASTERS AND DECK OFFICERS ENTERPRISE AGREEMENT 2024

Oil and gas industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 15 MARCH 2024

Application for approval of the OSM Australia Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the OSM AUSTRALIA PTY LTD MARITIME OFFSHORE OIL AND GAS INDUSTRY MASTERS AND DECK OFFICERS ENTERPRISE AGREEMENT 2024 (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 Pty Ltd. The Agreement is a single enterprise agreement.

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, which commenced operation on 6 June 2023. By reason of the transitional arrangements for the Amending Act and the notification time for the Agreement of 27 February 2023, the genuine agreement requirements for agreement approval in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023 apply to the present application. Further, as the Agreement was made on 13 February 2024 the better off overall test provisions in Part 2-4 of the Fair Work Act as amended on 6 June 2023 apply.

The Employer 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

The Australian Maritime Officers' Union and the Australian Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 March 2024. The nominal expiry date of the Agreement is 1 October 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Osm Australia Pty Ltd applied for the approval of the OSM Australia Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024. The agreement sought to govern the terms and conditions of employment for masters and deck officers in the maritime offshore oil and gas industry. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly concerning the fairness and procedural aspects of its formation.

The primary legal issues the Commission needed to address were whether the agreement was genuinely negotiated and if it met the fairness test. The Commission examined the negotiation process, including whether there was genuine consultation and whether the parties had genuinely attempted to negotiate. Additionally, the Commission assessed whether the terms of the agreement were fair and reasonable, taking into account factors such as the economic circumstances of the parties and the needs of the industry.

The Commission found that the agreement had been genuinely negotiated, with evidence of meaningful consultation between the parties. The Commission was satisfied that the negotiation process had been conducted in good faith and that both parties had genuinely attempted to reach an agreement. Regarding the fairness test, the Commission considered the economic context, the needs of the industry, and the terms of the agreement. The Commission determined that the agreement's terms were fair and reasonable, taking into account the specific circumstances of the maritime offshore oil and gas industry. Based on these findings, the Commission approved the agreement.

The Commission made an order approving the OSM Australia Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024. The agreement is to be registered with the Fair Work Commission and will govern the employment terms for masters and deck officers in the maritime offshore oil and gas industry from the date of approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established