Wood Australia Pty Ltd T/A Wood

[2024] FWCA 1710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Application for approval of a greenfields agreement

Wood Australia Pty Ltd T/A Wood

(AG2024/1405)

WOOD OFFSHORE BROWNFILEDS SERVICES (WESTERN AUSTRALIA) GREENFILEDS AGREEMENT 2024 – 2028

Oil and gas industry
COMMISSIONER LIM	PERTH, 10 MAY 2024

Application for approval of the Wood Offshore Brownfields Services (Western Australia) Greenfields Agreement 2024 – 2028

An application has been made for approval of a greenfields agreement known as the Wood Offshore Brownfields Services (Western Australia) Greenfields Agreement 2024 – 2028 (Agreement). The application was made by Wood Australia Pty Ltd T/A Wood (Applicant) pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act).

This is a greenfields agreement that meets the requirements of s 172(2)(b) of the Act.

In accordance with s.187(5) of the Act, I am satisfied that the Australian Workers Union (AWU) is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it, and that it is in the public interest to approve the Agreement.

I observe that clause 30.2 of the Agreement states that in circumstances where the Employee’s employment is terminated and there are outstanding monies owed by the Employee to the Company, including overpayments made to the Employee, the Company may withhold the outstanding amount from the final payment.

The effect of this clause is it appears to permit the Employer to withhold monies owing to the Employee under the National Employment Standards (NES) (such as accrued but unused annual leave or long service leave on termination or redundancy payments). This raises the issue that clause 6.6(e) may be inconsistent with s 61 of the Act.

However, noting clause 5.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Applicant has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of the bargaining representatives for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s 190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss 186, 187 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

Pursuant to s 53(2)(b) of the Act, I note that the Agreement was made with the AWU and that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 May 2024. The nominal expiry date of the Agreement is 17 May 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Wood Australia Pty Ltd, trading as Wood, applied for the approval of the Wood Offshore Brownfields Services (Western Australia) Greenfields Agreement 2024 – 2028, which is intended to cover employees within the oil and gas industry in Western Australia. This application was lodged under section 185 of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the proposed agreement met the necessary statutory requirements for approval.

The central legal issues before the Commission included whether the agreement appropriately aligned with the Fair Work Act 2009, particularly concerning the provisions on employee entitlements. Specifically, the Commission needed to assess if clause 30.2 of the Agreement, which allows the employer to withhold outstanding monies from final payments, including amounts owed under the National Employment Standards, was consistent with the Act. This raised concerns about potential inconsistencies with sections of the Act concerning employee entitlements upon termination of employment.

The Commissioner, Lim, concluded that the Australian Workers Union was entitled to represent the majority of employees affected by the Agreement and that it was in the public interest to approve the Agreement. The Commissioner observed that clause 30.2 could potentially permit the withholding of NES entitlements, but noted that clause 5.2 of the Agreement ensures that more beneficial NES entitlements would prevail in the event of any inconsistency. The Commissioner also accepted the Applicant's written undertakings, which were intended to address these concerns, and found that these undertakings did not result in financial detriment to employees or substantial changes to the Agreement. Thus, the Commissioner found that all relevant statutory requirements for approving the Agreement had been met.

In light of the above findings, the Agreement was approved to operate from 17 May 2024, with a nominal expiry date of 17 May 2028. This decision confirms that the Agreement complies with the statutory framework, and it will now govern the employment terms and conditions for the relevant employees within the specified period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established