Total Marine Technology Pty Ltd

[2021] FWCA 3751

[2021] FWCA 3751

FAIR WORK COMMISSION

DECISION

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

Total Marine Technology Pty Ltd
(AG2021/5628)

TOTAL MARINE TECHNOLOGY PTY LTD ROV ENTERPRISE AGREEMENT 2021

Oil and gas industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 30 JUNE 2021

Application for approval of the Total Marine Technology Pty Ltd ROV Enterprise Agreement 2021.

[1] Total Marine Technology Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Total Marine Technology Pty Ltd ROV Enterprise Agreement 2021 (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.

[2] 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 as are relevant to this application for approval have been met. The following observations are noted with regard to having been satisfied that the casual employees employed by the Applicant ought to be regarded as employees ‘employed at the time’ within the meaning of s 181(1).

[3] By way of background, the Applicant has a predominately casual workforce which works offshore. This is reflected in the terms of the Agreement. While some of the employee cohort may work onshore, it is said to be a rare occurrence arising when maintenance is to be performed at the Applicant’s Bibra Lake company premises. Primarily, the offshore crewing requirements and duration of the deployment is fully determined by clients of the Applicant.

[4] The Applicant submitted that due to the uncertain nature of the industry, it is not uncommon for employees to confirm their commitment to returning to work at the next available opportunity, or ‘as needed’, meaning that they are placed on a scheduled roster until notified otherwise. Explaining further, the Applicant noted that some employees were assigned a regular roster for forecasting purposes, and to allow for sufficient rest off swing before returning to work. However, the number of employees required at an offshore worksite and the expected duration, could vary significantly.

[5] The following evidence was provided by Mr Heath McGay, HR Advisor, for the Respondent with respect to the workforce on 25 May 2021 (when notification of the vote was provided):

1. The 27 employees who were offshore at the time the notice were actively engaged by Total Marine Technology, and working at one of six offshore projects. They were not on R&R or deemed not employed.

The remaining three categories were not offshore at the time the notice was issued:

2. 12 employees were confirmed to be working offshore on or after 25th May which would have meant they were going to be actively engaged and working at one of six offshore projects, either during the access period or at the time of the vote on Thursday 3rd June or Friday 4th June.
3. 10 employees had recently completed offshore work, and had committed to return to work at the next available opportunity.
4. 2 employees who had requested and were granted leave from work. Had they not requested leave, they would have returned from their R&R period on 10th May, meaning they would have been offshore on 25th May 2021. They had also committed to return to work at the next available opportunity.

[6] In light of the abovementioned working arrangements, I considered whether the request to employees to approve the Agreement by voting for it, was made to employees who were ‘employed at the time’. Adopting the approach of the Full Bench in McDermott Australia Pty Ltd v The Australian Workers’ Union, & The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 1(McDermott), I am satisfied that this was the case for the reasons that follow.

[7] In McDermott, the Full Bench undertook a comprehensive analysis of the words ‘the employees employed at the time’ in light of the relevant legislative provisions. Consideration in that case extended to employees working offshore, performing project construction work through a series of work campaigns. In light of the work campaigns on the project, the employees were not always performing work or being paid for performing work at the time of the vote. The Full Bench observed that the Commissioner at first instance, had held the view that there was something wrong with the vote occurring while employees were not actually performing or being paid for performing work at the time of the vote. However, the Full Bench expressed that this was incorrect; noting ‘the status of the 36 casual employees at the time of the vote was a natural and expected phenomenon of being employed on a casual contract as per the Full Bench decision in Smiths Snackfood’. 2 It continued that it would be inappropriate and counter intuitive to disenfranchise casual employees of a right to vote on an agreement that determines their wages and conditions on the basis that they were not rostered on to work on the day/s of the vote, or during the 7 day access period.3

[8] While the factual matrix in the case before me is not on all squares with that which played out in McDermott, it remains that the reasoning in McDermott is not misplaced. It is correct to state that the employees were engaged on a casual basis; however, at the relevant time they had on-going casual employment with the Applicant that saw them either scheduled to work during the access period, on authorised leave, or committed to work at the next available opportunity. 4 The evidence provided does not lean toward a finding of voting manipulation as referred to in McDermott and I accept that the employees had on-going employment with the Applicant at the relevant time, as evidenced by the account provided by Mr McGay and the supporting materials submitted .

[9] The Australian Workers’ Union (the organisation),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 statutory declaration provided by the organisation, I note that the organisation is covered by the Agreement.

[10] The Agreement was approved on 30 June 2021and, in accordance with s 54, will operate from 7 July 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

 1   [2016] FWCFB 2222.

 2 Ibid [35].

 3   Ibid.

 4   Clause 16 of the Agreement.

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