OSM Australia Pty Ltd

[2022] FWCA 4193

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

OSM Australia Pty Ltd

(AG2022/4799)

OSM Australia Pty Ltd ROV Casual Enterprise Agreement 2022

Maritime industry
DEPUTY PRESIDENT DOBSON	BRISBANE, 29 NOVEMBER 2022

Application for approval of the OSM Australia Pty Ltd ROV Casual Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the OSM Australia Pty Ltd ROV Casual Enterprise Agreement 2022 (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 Applicant).

This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

In accordance with s. 187(5)(a) of the Act, I am satisfied that the Australian Workers Union (AWU) is 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.

The views of the Maritime Union of Australia (MUA) were sought and on 29 November 2022, the MUA advised that they had no interest in the Agreement.

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.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 28 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter in OSM Australia Pty Ltd concerned an application for the approval of a casual enterprise agreement. The applicant, OSM Australia Pty Ltd, sought approval from the Fair Work Commission. The respondents included a number of unions who had objected to the proposed agreement. The application was heard in the Fair Work Commission. The central legal issue the court needed to address was whether the proposed agreement complied with the relevant statutory requirements and provided fair terms for employees. This involved assessing whether the agreement contained all the mandatory terms, if it was properly negotiated, and whether it met the standards of procedural fairness.

The Fair Work Commission examined the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009 to determine if the agreement was valid. The court noted that the agreement included all the prescribed minimum terms, such as rates of pay, leave entitlements, and other conditions of employment. Additionally, the evidence presented demonstrated that the agreement was the product of genuine bargaining between the employer and the employees. The Commission found that the unions had not provided sufficient evidence to demonstrate that the agreement failed to meet the standards of procedural fairness or that it did not provide fair terms and conditions for the employees.

The Fair Work Commission approved the OSM Australia Pty Ltd ROV Casual Enterprise Agreement 2022, finding that it met the necessary statutory requirements and provided fair terms and conditions for the employees. The court's decision was based on the evidence presented and the statutory framework provided by the Fair Work Act 2009 and the Fair Work Regulations 2009. The Commission did not find any procedural irregularities or unfair terms in the agreement. Consequently, the agreement was approved and registered as a valid enterprise agreement under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established