BP Australia Pty Ltd
[2025] FWC 408
•14 FEBRUARY 2025
| [2025] FWC 408 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.319 - Application for an order relating to instruments covering new employer and non-transferring employees
BP Australia Pty Ltd
(AG2025/186)
ATOM KWINANA TERMINAL OPERATORS ENTERPRISE
AGREEMENT 2023
Oil and gas industry
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 14 FEBRUARY 2025 |
Application for an order relating to instruments covering non-transferring employees.
This decision concerns an application by BP Australia Pty Ltd (the Applicant/New Employer) for orders pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth) (the Act) that the ATOM Kwinana Terminal Operators Enterprise Agreement 2023[1] (the ATOM Agreement) will cover non- transferring employees who perform transferring work for the Applicant.
Background
The Australian Terminal Operations Management Pty Ltd (ATOM) currently operates the BP Kwinana Fuels Terminal. ATOM is covered by the ATOM Kwinana Terminal Operators Enterprise Agreement 2023.
On 1 March 2025 BP Australia will take over operations of the Kwinana Terminal, from which date transferring employees and BP Australia will become covered by the ATOM Agreement. To maintain consistent terms and conditions of employment for both transferring and non-transferring employees that may be employed after the transfer of business, BP Australia seeks an order that the ATOM Agreement cover all non-transferring employees that may be employed after the transfer of business, within the Agreement’s classifications.
Orders sought
The orders sought by the Applicant are as follows:
1.The ATOM Kwinana Terminal Operators Enterprise Agreement 2023 that covers, or is likely to cover, BP Australia Pty Ltd because of a provision of Part 2-8 of the Fair Work Act, will cover all non-transferring employees of BP Australia Pty Ltd who perform, or are likely to perform, transferring work for BP Australia Pty Ltd.
2.In accordance with s.319(4)(b) of the Fair Work Act this order shall take effect in respect of each non-transferring employee on and from the later of the following:
a)The date of this Order; or
b)The date the employment of each non-transferring employee commences with BP Australia Pty Ltd.
The orders will not apply to any other non-transferring employee employed by the Applicant in positions that are not covered by the Agreement, and the transferring work will be limited to the work covered by the transferrable instrument at the relevant location.
The Australian Workers’ Union (AWU) is covered by the ATOM Agreement and does not oppose the orders sought by the Applicant. The Applicant and the AWU advised that they are both content for the matter to be determined on the material currently before the Commission.
I am therefore satisfied that the matter can be determined on the papers without the need for a hearing.
New non-transferring employees of new employer to be covered by transferable instrument
I am satisfied that the Agreement is a transferable instrument within the meaning of s.312 of the Act, and I observe that the Applicant accepts that the Agreement is a transferable instrument. Section 314 of the Act sets out when new non-transferring employees may be covered by a transferring instrument.
Consideration of section 319
Section 319 of the Act sets out the matters the Commission must have regard to in determining if the orders sought should be granted. I set out below the relevant considerations:
Section 319(2)(a) – who may apply for an order
The Applicant is the New Employer and is therefore permitted to make this application.
Section 319(3)(a)(i) – views of the new employer
The Applicant seeks, and supports the order.
Section 319(3)(a)(ii) – views of the employees who would be affected by the order
There are no non-transferring employees currently employed by the Applicant. The Applicant, however, has consulted with the AWU as a party to the transferring agreement and they do not oppose the orders sought.
Section 319(3)(b) – whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment
The Applicant submits that no employees are expected to be disadvantaged by the order. It submits that in the absence of the orders sought, non-transferring employees engaged by the Applicant following the transfer of business, would be engaged under the Oil Refining and Manufacturing Award 2020 (Award). Under the Agreement, employees receive a minimum of 50% to 73% higher annual earnings when compared with the Award.
Currently there is no other Agreement that applies to the work of transferring employees therefore it would be advantageous that non transferring employees are covered by the same instrument as transferring employees. I am satisfied that employees affected by this Order would not be disadvantaged in relation to their terms and conditions in favour of making the order sought.
Section 319(3)(c) – the nominal expiry date of the agreement
The Agreement has a nominal expiry date of 9 October 2026 and the Order will apply for approximately 18 months.
Section 319(3)(d) – whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace
The Applicant has not submitted that the transferable instrument would have any negative impact on the productivity of its new workplace. Rather it submits that the proposed orders will be positive by promoting workforce stability and continuity, which are essential for operational efficiency and employee morale.
I am satisfied that the ATOM Agreement will have no negative impact on productivity upon making the order sought.
Section 319(3)(e) – whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer
The Applicant has not submitted that it would incur any significant economic disadvantage by making the order. It submits that if the order is not made it would need to maintain separate terms and conditions for two groups of employees performing the same roles on site, and this would create a significant additional administrative burden.
I have treated this as a neutral consideration.
Section 319(3)(f) – the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer
The Applicant has not submitted that this consideration weighs against making the order sought, and I have treated this as a neutral consideration.
Section 319(3)(g) – the public interest
Having regard to the submissions of the Applicant, I am satisfied that it is not contrary to the public interest to make the order sought.
Conclusion
Having taken into the account the material provided by the Applicant in support of its application and the matters set out in s.314 and 319(3) of the Act, I am satisfied that it is appropriate to grant the order pursuant to s.319(1)(b), that a transferable instrument that covers, or is likely to cover the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
An order[2] to this effect will be issued separately.
DEPUTY PRESIDENT
[1] [2023] FWCA 3171; AE521698.
[2] PR784257.
Printed by authority of the Commonwealth Government Printer
<AE521698 PR784256>
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