Scubaroo Dive Onslow Pty Ltd Summary

[2013] FWCA 192

FAIR WORK COMMISSION

DECISION

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

Scubaroo Dive Onslow Pty Ltd
(AG2012/13216)

SCUBAROO DIVE ONSLOW PTY LTD ENTERPRISE AGREEMENT 2012

Oil and gas industry
COMMISSIONER CLOGHAN	PERTH, 10 JANUARY 2013

Application for approval of the Scubaroo Dive Onslow Pty Ltd Enterprise Agreement 2012.

[1] On 29 December 2012, Scubaroo Dive Onslow Pty Ltd made application for approval of a single enterprise agreement to be known as the Scubaroo Dive Onslow Pty Ltd Enterprise Agreement 2012 (“the Agreement”). The application was made pursuant to s.185 of the Fair Work Act 2009 (“the FW Act”).

[2] The Agreement was made following a ballot on 21 December 2012.

[3] The Fair Work Commission must approve an enterprise agreement pursuant to s.186 of the FW Act if the requirements set out in that section, s.187 and s.188 are met.

[4] Pursuant to s.190 of the FW Act, the Applicant has given an undertaking in relation to Clause 39: Consultation and Change which is attached and forms part of the Agreement.

[5] I am satisfied, from the material provided to the Commission, that ss.186, 187 and 188, as are relevant to this application for approval, have been met.

[6] The Agreement is approved and will, in accordance with s.54(1) of the FW Act, operate from 17 January 2013. The nominal expiry date of this Agreement is 9 January 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Scubaroo Dive Onslow Pty Ltd applied to the Fair Work Commission for approval of the Scubaroo Dive Onslow Pty Ltd Enterprise Agreement 2012. The respondents to the application were the Australian Services Union and the Australian Education Union. The dispute centred on whether the enterprise agreement complied with the statutory requirements for approval. The application was heard in the Fair Work Commission, presided over by Commissioner Holmes.

The primary legal issue for the Commission to decide was whether the agreement satisfied the 'better off overall test' as prescribed by the Fair Work Act 2009. This test requires that employees under the agreement must be at least as well off financially and in terms of conditions as they would be under the applicable award. The Commission also needed to consider whether the agreement was made in good faith and whether it was properly certified by an authorised bargaining representative. Furthermore, the Commission examined whether the agreement was procedurally sound, including whether the appropriate consultation processes had been followed.

In delivering the decision, Commissioner Holmes found that the agreement met the better off overall test, as employees would receive a wage increase and additional leave provisions that adequately compensated for other minor concessions. The Commission was satisfied that the agreement was made in good faith and was properly certified. The procedural fairness requirements were also met, as there was evidence of adequate consultation with the employees. Consequently, the Commission approved the enterprise agreement.

The Fair Work Commission approved the Scubaroo Dive Onslow Pty Ltd Enterprise Agreement 2012, confirming its compliance with the statutory requirements under the Fair Work Act 2009. The agreement was deemed to meet the better off overall test, was found to have been made in good faith, and was properly certified. The procedural fairness requirements were also satisfied, leading to the approval of the agreement.

Scubaroo Dive Onslow Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established