OSM Australia Pty Ltd T/A OSM Australia Pty Ltd

[2019] FWCA 3139

[2019] FWCA 3139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

OSM Australia Pty Ltd T/A OSM Australia Pty Ltd
(AG2019/1284)

OSM KOOLAN ISLAND GREENFIELDS AGREEMENT 2019

Port authorities
COMMISSIONER LEE	SYDNEY, 7 MAY 2019

Application for approval of the OSM Koolan Island Greenfields Agreement 2019.

[1] An application has been made for approval of a greenfields agreement known as the OSM Koolan Island Greenfields Agreement 2019 (the Agreement). The application was made by OSM Australia Pty Ltd T/A OSM Australia Pty Ltd pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] This is a greenfields agreement that meets the requirements of section 172(2)(b) of the Act. I am satisfied that each of the requirements of ss.186 and 187 of the Act 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 Construction, Forestry, Maritime, Mining and Energy Union 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.

[3] Pursuant to s.53(2)(b) of the Act I note the Agreement was made with Construction, Forestry, Maritime, Mining and Energy Union and that the Agreement covers this organisation.

[4] I note that clause 16.5 of the Agreement provides that if an employee resigns or is terminated for misconduct within 12 months of the training being completed the Company may recover the remaining costs outlaid from the Employee’s remuneration. In my view, the clause may provide for deductions which are not permitted deductions within the meaning of s.324 of the Act. Pursuant to s.326 of the Act, the clause will have no effect to the extent that it is not a permitted deduction. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 14 May 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

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