Tidewater Ship Management (Australia) Pty Ltd

[2024] FWCA 197

[2024] FWCA 197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Tidewater Ship Management (Australia) Pty Ltd

(AG2023/5247)

TIDEWATER SHIP MANAGEMENT (AUSTRALIA) PTY LTD AND MUA OFFSHORE OIL AND GAS ENTERPRISE AGREEMENT 2023

Oil and gas industry
COMMISSIONER LIM	PERTH, 18 JANUARY 2024

Application for approval of the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil and Gas Enterprise Agreement 2023

1. Tidewater Ship Management (Australia) Pty Ltd has made an application for the approval of an enterprise agreement known as the Tidewater Ship Management (Australia) Pty Ltd and MUA Offshore Oil 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 17 June 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.

2. 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. I note that clause 12.4(d) provides that the clause overrides any requirement by the employer to write to casual employees regarding the offering of permanency as outlined under existing industrial relations legal framework. This appears inconsistent with s.66B of the Act which provides that an employer must make an offer to a casual employee if the employee has been employed by the employer for a period of 12 months; and during at least the last 6 months, the employee has worked a regular pattern of hours on an ongoing basis. However, I am satisfied that under clause 3.2 of the Agreement, the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Construction, Forestry and Maritime Employees 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 18 January 2024 and, in accordance with s 54, will operate from 25 January 2024.  The nominal expiry date of the Agreement is 1 August 2027.

COMMISSIONER

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ANNEXURE A