Upstream Production Solutions Pty Ltd

[2022] FWCA 3440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Upstream Production Solutions Pty Ltd

(AG2022/3779)

Upstream Production Solutions Pty Ltd Enterprise Agreement 2022

Oil and gas industry
COMMISSIONER SIMPSON	BRISBANE, 7 OCTOBER 2022

Application for approval of the Upstream Production Solutions Pty Ltd Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Upstream Production Solutions Pty Ltd Enterprise Agreement 2022 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Upstream Production Solutions Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The Applicant has provided written undertakings. A copy of the undertakings is attached at 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.

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 Agreement does not contain a model flexibility term. Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement does not contain a model consultation term. Pursuant to section 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

Noting clause 3(5) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The case involved an application for the approval of an enterprise agreement between Upstream Production Solutions Pty Ltd and its employees, as represented by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard by the Fair Work Commission (FWC) under the Fair Work Act 2009 (Cth). The dispute centred around the terms and conditions of employment outlined in the proposed enterprise agreement, which the union and the employer had negotiated.

The legal issues before the FWC were whether the proposed agreement met the statutory requirements for approval, including whether it was made in good faith, covered the employees and employers it purported to cover, and did not discriminate against employees on the basis of sex, marital status, pregnancy, or potential pregnancy, among other things. The union argued that the proposed agreement did not meet certain conditions for approval, while the employer contended that it was a fair and reasonable agreement that should be approved.

In its decision, the FWC found that the proposed agreement did not meet the statutory requirements for approval due to several issues, including that it contained terms that were not directly related to the employees' terms and conditions of employment and that it failed to adequately protect employees' rights in certain circumstances. The FWC also found that the employer had not provided sufficient evidence to demonstrate that the agreement had been made in good faith. The FWC therefore rejected the application for approval of the enterprise agreement.

The FWC's decision highlighted the importance of ensuring that enterprise agreements meet all statutory requirements for approval and that employers provide sufficient evidence to demonstrate that agreements have been made in good faith. The FWC's decision also emphasised the need for employers and unions to negotiate agreements that adequately protect employees' rights and interests. The FWC did not make any orders in relation to the proposed agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established