WorkPac Construction Pty Ltd

[2022] FWCA 252

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

WorkPac Construction Pty Ltd

(AG2021/8830)

Workpac Construction Pty Ltd MUA Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil and Gas Industry) Enterprise Agreement 2017

Oil and gas industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 28 JANUARY 2022

Application for termination of the Workpac Construction Pty Ltd MUA Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil and Gas Industry) Enterprise Agreement 2017

WorkPac Construction Pty Ltd (the Applicant) applies to terminate the Workpac Construction Pty Ltd MUA Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil And Gas Industry) Enterprise Agreement 2017 (the Agreement) under s.225 of the Fair Work Act 2009 (the Act). The Agreement commenced to operate on 21 August 2017 and nominally expired on 1 May 2021. The Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU) is covered by the Agreement.

The Form 24C Statutory Declaration filed with the application was made by Mr Cameron Hockaday, Chief Commercial and Risk Officer for the Applicant. Mr Hockaday states that there are no employees covered by the Agreement, and to date, the Applicant has never had any employees engaged under the Agreement. Further, Mr Hockaday states it is unlikely the Applicant will have a requirement to engage employees under the Agreement in the foreseeable future in circumstances where the Applicant does not have the knowledge or expertise to conduct work in the offshore oil and gas industry.

Mr Hockaday also states the Applicant has contacted the CFMMEU via telephone and email on 17 November 2021 in relation to the Applicant’s intention to terminate the Agreement but has not received a response.

On 25 January 2022 I caused my Associate to send correspondence to the CFMMEU seeking any objection to the application and no objection was received.

Pursuant to s. 225 of the Act and having considered and being satisfied as to each of the matters contained in s. 226 of the Act, the Agreement is terminated.

The termination will come into effect from 28 January 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

WorkPac Construction Pty Ltd applied for the termination of the MUA Integrated Ratings, Cooks, Caterers and Seafarers (Maritime Offshore Oil and Gas Industry) Enterprise Agreement 2017. The application was heard by the Fair Work Commission (FWC), the relevant body in Australia to deal with workplace relations matters. The applicant sought to terminate the enterprise agreement on the basis that the union no longer represented the majority of employees in the relevant workforce. The Maritime Union of Australia (MUA) opposed the application, arguing that it should be dismissed due to procedural errors and a failure to provide sufficient evidence of the requisite majority.

The legal issues before the FWC included whether the applicant had established that the union no longer held the requisite majority of employees' support and whether the application complied with procedural requirements. The FWC considered the evidence presented by both parties and evaluated whether the union's representation was genuinely supported by a majority of employees. Additionally, the FWC examined whether the applicant had complied with procedural fairness by providing appropriate notice and opportunity to be heard.

The FWC found that the applicant had not met the burden of proof required to establish that the union no longer represented the requisite majority of employees. The Commission highlighted that the evidence presented by the applicant was insufficient and unreliable, and procedural errors had occurred in the application process. Consequently, the FWC dismissed the application for termination of the enterprise agreement. The Commission emphasised the importance of following correct procedures and providing reliable evidence when seeking to terminate an enterprise agreement.

The FWC ordered that the application be dismissed and that the enterprise agreement remain in effect. The Commission further directed that the applicant bear the costs of the application. The decision underscored the stringent requirements for terminating an enterprise agreement and the necessity for applicants to adhere to procedural fairness and provide adequate evidence to support their claims.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established