Tidewater Ship Management (Australia) Pty Ltd Summary

[2024] FWCA 2059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Tidewater Ship Management (Australia) Pty Ltd

(AG2024/1577)

TIDEWATER SHIP MANAGEMENT (AUSTRALIA) PTY LTD MARITIME OFFSHORE OIL AND GAS INDUSTRY MASTERS AND DECK OFFICERS ENTERPRISE AGREEMENT 2024

Oil and gas industry
COMMISSIONER LIM	PERTH, 4 JUNE 2024

Application for approval of the Tidewater Ship Management (Australia) Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024

Tidewater Ship Management (Australia) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Tidewater Ship Management (Australia) Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024 (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.

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s 586(b) of the Act.

The Agreement title on the Notice of Employee Representational Rights is the ‘Tidewater Ship Management (Australia) Pty Ltd Deck Officers Maritime Offshore Oil and Gas Industry Enterprise Agreement 2024’ whilst the Agreement title in clause 1 is the ‘Tidewater Ship Management (Australia) Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024.’ Pursuant to s 188(5) of the Act, 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. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(5) of the Act.

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 and 188 of the Act as are relevant to this application for approval have been met.

Clause 13 of the Agreement states that an individual flexibility arrangement may be terminated by giving 28 days’ written notice to the other party to the arrangement, but it does not specifically state that it will be ‘no more than 28 days’ as required by s 203(6)(a) of the Act. Therefore, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is attached to the Agreement and taken to be a term of it.

The Australian Workers’ Union and the Australian Maritime Officers’ Union (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declarations provided by the organisations, I note that the organisations are covered by the Agreement.

The Agreement was approved on 4 June 2024 and, in accordance with s 54, will operate from 11 June 2024. The nominal expiry date of the Agreement is 30 November 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involves an application by Tidewater Ship Management (Australia) Pty Ltd for the approval of the Tidewater Ship Management (Australia) Pty Ltd Maritime Offshore Oil and Gas Industry Masters and Deck Officers Enterprise Agreement 2024, under section 185 of the Fair Work Act 2009. The application was initially filed with a signature page that did not comply with Regulation 2.06A of the Fair Work Regulations 2009. An amended signature page was later submitted, prompting the Commissioner to waive the irregularity under section 586(b) of the Act.

The legal issues in this case primarily revolve around whether the Agreement was genuinely agreed upon and whether it complied with the relevant statutory requirements. There were minor technical errors in the Agreement's title on the Notice of Employee Representational Rights compared to the title in clause 1. The Commissioner needed to determine if these discrepancies were significant enough to affect the genuineness of the agreement. Additionally, the Commissioner had to address the omission of the exact term "no more than 28 days" for terminating individual flexibility arrangements, as required by section 203(6)(a) of the Act.

The Commissioner found that despite the minor technical errors, the Agreement was genuinely agreed upon and that the employees would not have been disadvantaged by these errors. The Commissioner concluded that the requirements of sections 186, 187, and 188 of the Act were met, and the model flexibility term was attached to the Agreement as a term. The bargaining representatives for the Agreement, the Australian Workers' Union and the Australian Maritime Officers' Union, indicated their willingness for the Agreement to cover them. The Commissioner approved the Agreement on 4 June 2024, effective from 11 June 2024, with a nominal expiry date of 30 November 2027.

Tidewater Ship Management (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established