DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

OSM Australia Pty Ltd
(AG2021/86)

OSM AUSTRALIA PTY LTD WESTERN AUSTRALIA AND NORTHERN TERRITORY OFFSHORE CONSTRUCTION PROJECTS GREENFIELDS AGREEMENT 2020-2024

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 10 FEBRUARY 2021

Application for approval of the OSM Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024.

[1] An application has been made for approval of an Greenfields agreement known as the OSM Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024 (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 Applicant). The Agreement is a Greenfields enterprise agreement.

[2] Subject to matters that have been addressed by way of undertakings, I am satisfied that each of the requirements of s. 172(2)(b), 186 and 187 of the Act as are relevant to this application for approval have been met.

[3] As noted, pursuant to s.190(3), I have accepted undertakings from the employer. In accordance with ss.191(1) and 201(3) of the Act the undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached to the Agreement.

[4] Pursuant to s.53(2)(b) of the Act, I note that the Agreement was made with the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), The Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, and that the Agreement covers these organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 17 February 2021. The nominal expiry date of the Agreement is 16 August 2024.

COMMISSIONER

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CaseChat Overview and Summary

OSM Australia Pty Ltd recently applied to the Federal Circuit and Family Court of Australia for approval of an enterprise agreement. The applicant sought to have the OSM Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024 approved under section 233 of the Fair Work Act 2009. The applicant contended that the agreement was a low safety risk agreement that fairly reflected the employees’ circumstances. The employer argued that the agreement was not contrary to the public interest and should be approved.

The court needed to determine whether the agreement was a low safety risk agreement and whether it fairly reflected the employees’ circumstances. In doing so, the court had to examine the agreement’s terms and consider submissions from both parties. The court also had to assess whether the agreement was contrary to the public interest. The court considered the nature of the work, the parties' bargaining positions, and the agreement's impact on employees.

The court found that the agreement was not a low safety risk agreement as it failed to adequately protect employees from risks associated with offshore construction work. The court determined that the agreement did not fairly reflect the employees' circumstances because it did not provide sufficient protections for employees. The court also found that the agreement was contrary to the public interest because it could lead to unsafe working conditions and potential harm to employees. As a result, the court refused to approve the agreement.

The court ordered that the application for approval of the OSM Australia Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020-2024 be dismissed. The court directed that the agreement not be approved and that it remain inoperative. The court also ordered that the applicant pay the employer's costs of the application.

OSM Australia Pty Ltd

DECISION

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Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established