Solstad Australia Pty Ltd T/A Solstad Australia Pty Ltd

[2024] FWCA 28

[2024] FWCA 28

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Solstad Australia Pty Ltd T/A Solstad Australia Pty Ltd

(AG2023/5132)

SOLSTAD AND MUA OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2023

Maritime industry
COMMISSIONER LIM	PERTH, 12 JANUARY 2024

Application for approval of the Solstad and MUA Offshore Oil and Gas Enterprise Agreement 2023

1. Solstad Australia Pty Ltd T/A Solstad Australia Pty Ltd has made an application for the approval of an enterprise agreement known as the Solstad and MUA Offshore and Gas Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act).  The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the

Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 11 May 2022.

1. The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. In compliance with s 190(4) of the Act, the bargaining representative’s views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. On 22 November 2023, the Employer became aware that seven employees were not included in the email sent on 21 November 2023 that notified employees of the time, place and method of vote. The company emailed the excluded seven employees on 22 November 2023. It would therefore appear that not all employees were notified of the time, place and method of vote seven clear days prior to the commencement of voting as required by the Act. Pursuant to s 188(2) of the Act (as it was prior to 6 June 2023), I am satisfied that the agreement would have been genuinely agreed to but for the minor technical errors made in relation to the requirements set out in s 174(1A) of the Act. I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the errors noting that all of the eligible cohort cast a valid vote. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

1. The Construction, Forestry, and Maritime Union (the CFMEU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 12 January 2024 and, in accordance with s 54, will operate from 19 January 2024.  The nominal expiry date of the Agreement is 1 August 2027.

COMMISSIONER

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Annexure A