Australian Workers' Union, The v Viva Energy Polymers Pty Ltd Trading as Viva Energy Polymers

[2025] FWC 1579

[2025] FWC 1579

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.739—Dispute resolution

Australian Workers’ Union, The
v

Viva Energy Polymers Pty Ltd Trading AS Viva Energy Polymers

(C2025/2884)

COMMISSIONER CONNOLLY MELBOURNE, 6 JUNE 2025

Alleged dispute about any matters arising under the enterprise agreement

1. On 11 April 2025, an application was lodged by the Australian Workers Union (AWU or the Applicant) under s.739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute under the Dispute Resolution Procedure contained in clause 11.3 of the Viva Energy Polymers Pty Ltd Geelong Site Enterprise Agreement 2022 (the Agreement). The Respondent in this matter is Viva Energy Polymers Pty Ltd (Viva Energy), the employer covered by the Agreement.

1. The Agreement was approved by the Commission on 15 August 2023. The AWU is covered by the Agreement and acts for employees covered by it.

1. In conference, the parties reached an understanding of the matters of dispute about the STLs issuing/and or facilitating the issuing of permits or clearance certificates when the normal DLO is not available to or determined not to be required for project work arising from WorkSafe Victoria Improvement Notice Ref:WS-73778 regarding the bullet deluge.

1. It is the recommendation of this Commission that the parties implement and abide by this agreement as set out in the terms below.

1. The purpose of this recommendation is to record this understanding of the parties provided for by Clause 11 of the Agreement and s.739 of the Fair Work Act.

Legislation

1. This dispute is seeking the exercise of the Commission’s arbitral powers under s.739 of the Fair Work Act 2009. Section 739(4) relevantly provides;

“(4)       “If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.”

1. The relevant Dispute Resolution Procedure is contained in clause 11.3 of the Agreement.

1. Relevantly clause 11.3.5 provides:

The Fair Work Commission may deal with the dispute in two stages:

a)   the Fair Work Commission will first attempt to resolve the dispute as is considers appropriate, including by mediation, conciliation, expressing an opinion and making a recommendation; and

b)   if Fair Work Commission is unable to resolve the dispute at the first stage, the Fair Work Commission may then:

i.arbitrate the dispute; and

ii.make a determination that is binding on the parties.

Agreement of the Parties

1. For the purposes of site project works associated with WorkSafe Victoria Improvement Notice Ref:WS-73778 regarding the bullet deluge the following is agreed:

a.)Viva Energy will take steps to ensure, through coordination with UGL (or other nominated project contractor) and other contract providers, that the program of works will be adjusted and limited to fit with the 6am to 6pm time block;

b.)The DLO on shift will have primary responsibility for facilitating and issuing clearances for project work activities within their ordinary hours.

.

c.)As part of the weekly project work plan issued to STLs, DSTLs, and DLOs, Viva will assess the nature of the tasks to determine whether there is sufficient justification for additional DLO onsite coverage between 2:00 pm and 6:00 pm. If additional coverage is deemed necessary, the opportunity will first be offered to the rostered DLO. If they are unavailable, the four-hour coverage block will then be made available to the remaining STLs and DSTLs. Overtime cannot be offered to any team member if accepting the coverage would result in additional overtime being triggered (ie: due to the backfill of their role).

d.)Circumstances in which the Company would be satisfied of the significance or that the nature of the work would result in an offer of overtime will be considered in totality, with regard to the location of the works, the complexity, volume and risks associated with the scheduled works.

i.Work likely to require a DLO onsite may include; work across multiple locations, such as welding, grinding, hot work permits, crane use, isolation list development, and alkyl tasks. Overtime coverage will be offered in these instances, and it is the responsibility of the DLO/STL/DSTL group to ensure coverage.

ii.Work less likely to require a DLO on site includes, such tasks such as scaffolding, non-destructive testing, basic cleaning, I/E batch jobs, painting, stripping, and activity not requiring direct supervision. Overtime will not be offered in these instances and the DLO will consult with and hand over to the shift STL by 2 pm.

e.)In the event of site works as outlined in clause (d)(i) are required to continue between 2 pm-6 pm, and overtime was offered, but not taken up (for whatever reason), and a DLO is therefore unavailable to oversee this work, the STL, will undertake to perform the identified functions of the DLO to ensure continuity of work, subject to Attachment 4 of the Agreement. This is largely to ensure oversight and awareness of any activity for which clearances have been issued, enabling the continuation of project works. In such instances, the DLO will facilitate a handover to the STL to support this requirement.

f.)If there is any dispute between the parties about the above agreement, either party is at liberty to make a further application to the FWC for assistance.

COMMISSIONER

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