Solstad Australia Pty Ltd T/A Solstad Offshore ASA
[2023] FWCA 3187
•4 OCTOBER 2023
| [2023] FWCA 3187 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Solstad Australia Pty Ltd T/A Solstad Offshore ASA
(AG2023/3207)
SOLSTAD AUSTRALIA PTY LTD AND AIMPE (MARINE ENGINEERS) OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2023
| Maritime industry | |
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 4 OCTOBER 2023 |
Application for approval of the Solstad Australia Pty Ltd and AIMPE (Marine Engineer) Offshore Oil and Gas Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the Solstad Australia Pty Ltd And Aimpe (Marine Engineers) Offshore Oil And Gas Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Solstad Australia Pty Ltd T/A Solstad Offshore ASA (the Applicant). The Agreement is a single enterprise agreement.
It was determined during the initial assessment of the Agreement that employees were notified of the time, place and method of vote six clear days prior to the commencement of voting rather than seven clear days as set out in s.180(3) and s.180(4) of the Act. The Applicant submitted that as bargaining for the Agreement had commenced prior to 6 June 2023, the genuine agreement test to be applied was that in force prior to 6 June 2023. As such, it was further submitted that the Commission could use the discretion conferred by the provisions of s.188(2) as they existed prior to 6 June 2023 to overlook the minor procedural error. The Applicant submitted that there had been no disadvantage to employees as a result of the minor procedural error and noted that ninety two percent of eligible employees had cast a valid vote in the ballot. I accept that these submissions have merit and pursuant to the provisions of the former s.188(2) I am satisfied that the Agreement has been genuinely agreed.
The notification time for the Agreement under s.173(2) was 4 March 2020 and the Agreement was made on 2 September 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].
The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Australian Institute of Marine and Power Engineers (AIMPE), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.
The Applicant has provided written undertakings. 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.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
The Australian Institute of Marine and Power Engineers (AIMPE) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AIMPE.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 4 October 2027.
DEPUTY PRESIDENT
[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.
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