DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Petrofac Facilities Management Limited
(AG2021/5196)

AUSTRALIAN FACILITIES MANAGEMENT ENTERPRISE AGREEMENT 2021

Oil and gas industry
COMMISSIONER WILSON	MELBOURNE, 31 AUGUST 2021

Application for approval of the Australian Facilities Management Enterprise Agreement 2021. Whether group covered by agreement is fairly chosen. Whether agreement is genuinely agreed.

[1] Application for approval of the Australian Facilities Management Enterprise Agreement 2021 (the Agreement) was made to the Fair Work Commission (the Commission) by Petrofac Facilities Management Ltd (Petrofac or the Applicant) on 18 May 2021. The scope of the Agreement is stated in clause 3.1 in the following way:

“3. APPLICATION AND OPERATION OF AGREEMENT

1. This Agreement will apply to the Company and the Company's Employees engaged in the classifications set out in Schedule 1 of this Agreement who are employed to perform work on a Site that would, but for the creation of this agreement, have been covered by the Hydrocarbons Industry (Upstream) Award 2020.

…”

[2] This decision concerns an objection to the Commission’s approval of the Agreement by the Australian Workers’ Union (AWU) on the ground the group to be covered by the Agreement was not fairly chosen; that it has not been genuinely agreed including that the employer failed to take all reasonable steps to explain the terms of the Agreement and the effect of those terms; and that the better off overall test is not met.

[3] Submissions and evidence pertinent to these matters were received from Petrofac, three employee bargaining representatives and the AWU. A hearing in relation to these matters was conducted by me on 21 July 2021.

[4] Mr Alex Mossop of Counsel, appeared with permission for Petrofac, instructed by Clayton Utz. Mr Zach Duncalfe, National Legal Officer appeared for the AWU. Four witnesses gave evidence on behalf of Petrofac; Ms Anna Keen, its HR manager and each of the three Employee Bargaining Representatives, Mr John Collidge, Mr Kevin Dowd and Mr Matt Bain. An AWU organiser, Mr Douglas Heath, gave evidence on behalf of the union.

[5] For the reasons set out below I am satisfied the Agreement was genuinely agreed and that since the other statutory criteria for approval of an agreement have been met the Agreement may be and is approved.

THE COMMISSION’S PRE-HEARING CONCERNS

[6] In accord with the Commission’s usual process after an application for approval of the Agreement is made, the Agreement’s conformity with the Act’s approval obligation was considered after which a number of matters of concern were identified to the parties in correspondence dated 25 May 2021. Those matters together with Petrofac’s responses may be summarised thus:

Pre-approval Requirements

• Coverage: there is a variation between the coverage clause in the Agreement and the coverage of the Notice of Employee Representational Rights (NERR). The Agreement states the Agreement will apply to employees engaged in classifications set out in Schedule 1 whereas the NERR states that the Agreement proposes to cover employees who fall under…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Petrofac Facilities Management Limited

Details

AGLC: Petrofac Facilities Management Limited [2021] FWCA 5187
Case: [2021] FWCA 5187
Decision Date: 31 AUGUST 2021

CaseChat Overview and Summary

Petrofac Facilities Management Limited applied to the Fair Work Commission for the approval of the Australian Facilities Management Enterprise Agreement 2021. The application involved determining whether the group of employees covered by the agreement was fairly chosen and whether the agreement had been genuinely agreed upon by the parties. The case was heard by the Fair Work Commission, which is the Australian independent statutory body responsible for the resolution of workplace disputes.

The primary legal issues before the Commission were the fairness of the group of employees covered by the agreement and whether there had been genuine agreement between the parties. The Commission considered the criteria for determining the fairness of the group, which involves ensuring that the employees are reasonably representative of the group and that the agreement does not unfairly exclude any employees. Additionally, the Commission examined the process through which the agreement was negotiated and whether there was genuine consensus among the parties.

In reaching its decision, the Commission assessed the evidence presented regarding the process of negotiating the agreement and the inclusivity of the employee group. The Commission concluded that the group of employees covered by the agreement was fairly chosen as it was reasonably representative and did not unfairly exclude any employees. Furthermore, the Commission determined that the agreement was genuinely agreed upon, as evidenced by the negotiations and the terms of the agreement. Therefore, the Commission approved the application for the Australian Facilities Management Enterprise Agreement 2021.

The Commission's final orders approved the Australian Facilities Management Enterprise Agreement 2021, confirming its validity and applicability. The approval was based on the determination that the employee group was fairly chosen and that the agreement had been genuinely negotiated and agreed upon by the parties involved. This decision ensures that the agreement can now be implemented and enforced in accordance with its terms.

Orders