Rigforce Pty Ltd

[2022] FWCA 1165

[2022] FWCA 1165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Rigforce Pty Ltd

(AG2022/881)

Rigforce Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024

Oil and gas industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 6 APRIL 2022

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

1. An application has been made for approval of a greenfields agreement known as the Rigforce Pty Ltd Western Australia and Northern Territory Offshore Construction Projects Greenfields Agreement 2020 - 2024 (the Agreement). The application was made by Rigforce Pty Ltd (the Applicant/Rigforce) pursuant to s 185 of the Fair Work Act 2009 (the Act).

1. This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act. For the following reasons, 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 Australian Manufacturing Workers Union (AMWU), Australian Workers Union (AWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (CEPU) are 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.

1. Pursuant to s 53(2)(b) of the Act, I note the Agreement was made with the AMWU, AWU and CEPU, and that the Agreement covers these organisations.

1. The Applicant has drawn the Commission’s attention to an error in the name of the employer in the text of the Agreement. Clause 3 of the Agreement states that it shall be binding on the ‘Company’, the AMWU, AWU, and the CEPU, and relevant employees. ‘Company’ is defined in clause 3 of the Agreement as ‘McDermott Australia Pty Ltd’. The correct name of the employer in question is, in fact, Rigforce. The Applicant submitted that this was a simple and obvious mistake which does not pose an obstacle to the Agreement’s approval. I agree. The Form F19 application correctly identifies Rigforce as the employer of employees covered by the Agreement. The employer’s Form F20 statutory declaration, sworn by Mr Conor O’Brien, Managing Director of Rigforce, similarly identifies Rigforce as the employer. 

1. It is clear that the reference to ‘McDermott Australia Pty Ltd’ in the text of the Agreement is a mistake, and that the intended reference was to Rigforce. In the circumstances, it can safely be inferred that the employees to be covered by the Agreement, understood it was one which covered them in their employment with their actual employer, Rigforce. The written text of the Agreement simply did not reflect the actual proposed agreement.[1]

1. It is very clear that the actual and only employer is Rigforce, and that the employees are employees of Rigforce.  I do not have a concern that the Agreement was not genuinely agreed. I am satisfied that the employer complied with the provisions referred to in s 188(1)(a), that the employees of Rigforce ‘made’ the Agreement in accordance with s 182(1), and that there are no other reasonable grounds for believing that the agreement has not been genuinely agreed to by the employees.

1. The Applicant submitted the Commission should approve the Agreement containing

the correct name of the employer. It asked the Commission to allow a correction to the Agreement under s 586(a) and sought leave to file a corrected copy. Section 586 states that the Commission may ‘allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate’. In Australian Nursing and Midwifery Federation v Domain Aged Care (Qld) Pty Ltd T/A Opal Aged Care,[2] the Full Bench majority accepted that, while the power to allow a correction to an agreement under s 586 should be used sparingly, obvious errors could be rectified.[3]  In my view, as was the case in Construction, Forestry, Maritime, Mining and Energy Union,[4] the present matter presents a case of obvious error in the Agreement, and it is appropriate to allow its correction.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 13 April 2022. The nominal expiry date of the Agreement is 16 August 2024.

DEPUTY PRESIDENT

[1] Retail and Fast Food Workers Union Incorporated v Hungry Jack’s Australia Pty Ltd T/A Hungry Jack’s [2020] FWCFB 1693, [58]-[59].

[2] [2019] FWCFB 1716, [52], [54].

[3] Construction, Forestry, Maritime, Mining and Energy Union [2020] FWCA 2017.

[4] Ibid.

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