BP Refinery (Kwinana) Pty Ltd
[2023] FWCA 2682
•23 AUGUST 2023
| [2023] FWCA 2682 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
BP Refinery (Kwinana) Pty Ltd
(AG2023/2724)
BP REFINERY (KWINANA) PTY LTD & AWU OPERATIONS & LABORATORY EMPLOYEES WORKPLACE DETERMINATION 2020
| Oil and gas industry | |
| DEPUTY PRESIDENT BEAUMONT | PERTH, 23 AUGUST 2023 |
Application for termination of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020
This decision concerns an application made by BP Refinery (Kwinana) Pty Ltd (the Applicant) on 10 August 2023 for the termination of the BP Refinery (Kwinana) Pty Ltd & AWU Operations & Laboratory Employees Workplace Determination 2020[1] (the Determination) made under s 225 of the Fair Work Act 2009 (Cth) (the Act). The Determination passed its nominal expiry date on 30 June 2022.
The Determination was made by the Full Bench of the Commission on 26 June 2020[2] pursuant to s 266 of the Act following the issuance of an order pursuant to s 424(1) of the Act terminating the protected industrial action engaged in by the employees of the Applicant.[3]
Section 279(1) of the Act provides that the Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation. It states as follows:
279 Act applies to a workplace determination as if it were an enterprise agreement
(1) This Act applies to a workplace determination that is in operation as if it were an enterprise agreement that is in operation.
Section 279(2) lists a number of exceptions to the effect of s 279(1), none of which are relevant to the present application.
Section 225 of the Act provides that an employer covered by an enterprise agreement can apply to the Commission for the termination of agreement, if the agreement has passed its nominal expiry date. Evidently, given the nominal expiry date of the Determination, the Applicant has standing.
Thereafter, the Commission is obliged to terminate the enterprise agreement if satisfied that the subsections of s 226 have been met.
226 Terminating an enterprise agreement after its nominal expiry date
(1) If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:
(a) the FWC is satisfied that the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii) if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2) This subsection covers a termination of the employment of an employee:
(a) at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b) because of the insolvency or bankruptcy of the employer.
(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a) the employees (unless there are no employees covered by the agreement);
(b) each employer;
(c) each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b) whether bargaining for the proposed enterprise agreement is occurring; and
(c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.
In support of its application, the Applicant has provided both a declaration and witness statement from Mr Christopher Lynch, People Relations Manager of the Applicant.
Mr Lynch explained that on 30 October 2020, the Applicant announced the intended closure of the Refinery at the Kwinana site.[4] In February 2021, the Refinery ceased all Refinery operations albeit the Kwinana site currently operates a fuel import terminal. However, in respect of the fuel import terminal that is not operated by the Applicant and the Applicant does not employ any employees there under the Determination.[5]
With respect to the workforce that the Determination previously applied to, Mr Lynch gave the following evidence:
a) during its operation, the Determination covered a peak workforce of approximately 170 employees of the Applicant;
b) in April 2021, the employment of approximately 97 employees covered by the Determination had their employment terminated by reason of redundancy;
c) between April 2021 and July 2023, the remaining employees continued to support post-closure activities of the Refinery, until either:
i.they were redeployed to alternative roles within BP Australia; or
ii.their employment was terminated by reason of redundancy (the majority of cases); and
d) the final four remaining employees covered by the Determination were offered, and accepted, Project Specialist roles with BP Australia, effective 1 July 2023.[6]
Mr Lynch confirmed that as of 1 July 2023 the Applicant had not engaged any new employees at the Kwinana site, did not employ employees covered by the Determination and did not intend in the future to employ any employees who would be capable of coverage by the Determination.[7]
Mr Lynch noted that the Applicant is therefore not currently bargaining for any enterprise agreement to replace the Determination, nor does it intend to do so.[8]
In respect to the operations of the Refinery, Mr Lynch reiterated the Refinery permanently ceased all Refinery operations in February 2021 and it has not re-commenced Refinery Operations since this date, nor will it in the future.[9]
At clause 2 of the Determination it is stipulated that The Australian Workers’ Union (the AWU) is covered by the Determination. Having been invited to provide its views on the proposed termination of the Determination, the AWU expressed that it did not oppose the termination.
Consideration
The Applicant did not object to the Commission determining the application on the papers, and as such I considered that to be the appropriate course.
I am satisfied that the Determination does not, and is not likely to, cover any employees and that it is appropriate in all the circumstances to terminate the Determination.
The views of the Applicant and the AWU have been considered and I accept Mr Lynch’s evidence in his declaration and witness statement that there are no employees covered by the Determination and that the Applicant does not intend to employ any future employees who would be covered by the Determination.
Accordingly, the Determination is terminated and pursuant to s 227 of the Act, the termination is to take effect on and from the date of this decision. An Order[10] to this effect is issued concurrently with this decision.
DEPUTY PRESIDENT
[1] AG508236.
[2] [2020] FWCFB 2693.
[3] PR703616.
[4] Witness Statement of Christopher Lynch, [23].
[5] Ibid [25].
[6] Ibid [26]–[29].
[7] Ibid [30].
[8] Ibid [31].
[9] Ibid [33].
[10] PR765454.
Printed by authority of the Commonwealth Government Printer
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