Vertech Group Pty Ltd T/A Vertech Group

[2021] FWCA 801

[2021] FWCA 801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Vertech Group Pty Ltd T/A Vertech Group
(AG2020/2911)

VERTECH GROUP PTY LTD OFFSHORE INSPECTION ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT MANSINI	MELBOURNE, 16 FEBRUARY 2021

Application for approval of the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020.

[1] Vertech Group has made an application for approval of a single enterprise agreement known as the Vertech Group Pty Ltd Offshore Inspection Enterprise Agreement 2020 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] Since the application was filed, various concerns have been raised by and with the Commission and are detailed in the earlier decision of [2021] FWC 447 (Earlier Decision).

[3] Having considered all of the submissions, evidence, further information and materials, undertakings and views provided by the Applicant and the bargaining representative, I have determined that the Agreement must be approved in accordance with the Act. The reasons follow.

Agreement passes the “better off overall test”

[4] I must be satisfied that the Agreement passes the “better off overall test” (BOOT) in assessing whether it must be approved in accordance with the Act.

[5] An enterprise agreement passes the BOOT if the Commission is satisfied, as at the time the application is made, that each award covered employee and each prospective award covered employee for the enterprise agreement would be better off overall if the enterprise agreement applied, than if the modern award applied. 1

[6] The relevant modern award, for the purposes of the BOOT for the Agreement, is the Hydrocarbons Industry (Upstream) Award 2020.

[7] Following the Earlier Decision, a conference was convened and attended by the Applicant and the bargaining representative. The Applicant subsequently proposed final consolidated written undertakings directed at addressing all of the Commission’s concerns, in accordance with s.190 of the Act (Undertakings). The bargaining representative did not oppose those final proposed Undertakings.

[8] 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.

[9] Further, on an overall assessment of whether employees to be covered would be better off overall under the Agreement, including with regard to the more beneficial and the less beneficial terms in the Agreement and the Undertakings, I am satisfied that the Agreement passes the “better off overall test”.

Genuinely agreed

[10] Another requirement for approval of an enterprise agreement, set out in s.186(2)(a), is that the Commission must be satisfied that the agreement has been “genuinely agreed to” by the employees covered by the agreement. Section 188 defines when employees have “genuinely agreed”.

[11] The Undertakings given in relation to clause 5.9 of the Agreement satisfactorily remedy any concern in respect of the obligation at s.188(1)(a) since the Agreement operating with the Undertakings is consistent with the explanation provided to the relevant employees. 2 I do not consider there to be any other reasonable grounds for considering that the Agreement was not “genuinely agreed”.

[12] Having regard to the Undertakings, and for the reasons given in the Earlier Decision, I am satisfied that the requirements of s.188 are met.

Approval and operation of the Agreement

[13] On the basis of the material contained in the application, further information provided on request of the Commission and the Undertakings, 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.

[14] The Australian Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2) I note that the Agreement covers this organisation.

[15] The Agreement was approved on 16 February 2021 and, in accordance with s.54, will operate from 23 February 2021. The nominal expiry date of the Agreement is 16 February 2025.

[16] For the purposes of publication, the signature page of the Agreement has been redacted in part, for confidentiality and as the enterprise agreement when made did not contain the redacted details. 3

DEPUTY PRESIDENT

Annexure A

 1   Fair Work Act 2009 (Cth) ss.193(1) and (6).

 2   CFMMEU v Karijini Rail Pty Ltd [2020] FWCFB 958 at [107].

 3   The Australian Workers’ Union v Oji Foodservice Packaging Solutions (Aus) Pty Ltd [2018] FWCFB 7501.

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