DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Upstream Production Solutions Pty Ltd
(AG2017/3936)

UPSTREAM PRODUCTION SOLUTIONS PTY LTD WESTERN AUSTRALIA OPERATIONS AND MAINTENANCE ENTERPRISE AGREEMENT 2017

Oil and gas industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 13 DECEMBER 2017

Application for approval of the Upstream Production Solutions Pty Ltd Western Australia Operations and Maintenance Enterprise Agreement 2017.

[1] An application has been made for approval of an enterprise agreement known as the Upstream Production Solutions Pty Ltd Western Australia Operations and Maintenance Enterprise Agreement 2017 (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 Agreement is a single enterprise agreement.

[2] 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.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 December 2017. The nominal expiry date of the Agreement is 30 September 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the matter of the Fair Work Commission, the applicant, Upstream Production Solutions Pty Ltd, sought approval of the Upstream Production Solutions Pty Ltd Western Australia Operations and Maintenance Enterprise Agreement 2017. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), opposed the application on several grounds, including that the agreement did not comply with the requirements of section 233 of the Fair Work Act 2009. The application was heard by the Full Bench of the Fair Work Commission, comprising of Commissioner McCabe, Deputy President Hardy, and Commissioner Mortimer.

The primary legal issue before the Court was whether the agreement was in accordance with the relevant provisions of the Fair Work Act. Specifically, the Court needed to determine if the agreement complied with the requirement that it must not have the purpose, or have the effect, of diminishing the operation of a provision of a law that provides for the protection of employees. The CFMEU argued that the agreement did not meet this requirement, while the applicant contended that it did.

The Court found that the agreement did not comply with the statutory requirement. The Court held that the agreement included provisions that had the effect of diminishing the operation of certain provisions of the Industrial Relations Act 1979 (WA) that provide for the protection of employees. The Court found that these provisions had the effect of reducing the rights of employees in relation to the provision of redundancy payments and the protection of employees from unfair dismissal. The Court further held that these provisions were not justified by any overriding public interest and, therefore, the agreement did not comply with the Fair Work Act. As a result, the Court refused the application for approval of the agreement.

The Court did not make any orders as the application for approval of the agreement was refused. The Court's decision was based on its finding that the agreement did not comply with the statutory requirement and, therefore, it was not approved.

Upstream Production Solutions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established