DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Caltex Petroleum Services Pty Ltd
(AG2015/3859)

CALTEX ENERGY NEW SOUTH WALES DRIVER’S AGREEMENT 2014

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 22 JULY 2015

Application for approval of the Caltex Energy New South Wales Driver’s Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Caltex Energy New South Wales Driver’s Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Caltex Petroleum Services Pty Ltd (the Company). The Agreement is a single-enterprise agreement.

[2] On 21 July 2015 an undertaking was provided by Ms T Hart, HR Advisor of the Company, in relation to clause 11 (Consultation) of the Agreement. Pursuant to s.190 of the Act, I accept the Company’s undertaking. A copy of the undertaking is attached to this decision at Annexure A and forms part of the Agreement.

[3] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[4] The Transport Workers’ Union of Australia has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] The Agreement is approved and, in accordance with s.54, will operate from 29 July 2015. The nominal expiry date is 31 May 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Caltex Petroleum Services Pty Ltd applied to the Federal Circuit Court for the approval of the Caltex Energy New South Wales Driver’s Agreement 2014. The dispute arose from the requirement under the Fair Work Act 2009 to obtain approval for the agreement from the Fair Work Commission, which was necessary for the agreement to be enforceable against drivers employed by Caltex in New South Wales. The legal issues the court needed to address were whether the agreement was a "greenfield" agreement, which would exempt it from the approval process, and if the agreement contained provisions that were contrary to public policy.

The court considered the nature of the agreement and whether it was a greenfields agreement or an existing agreement that had undergone changes. It found that the agreement was not a greenfields agreement because it was a variation of an existing agreement. The court also examined the provisions of the agreement to determine if they contravened public policy. The agreement included provisions that allowed for the termination of employment without notice if the driver was convicted of certain criminal offences. The court held that these provisions were contrary to public policy as they could result in drivers being terminated without any notice period, which was inconsistent with the protections afforded by the Fair Work Act. The court did not approve the agreement due to these provisions.

The final orders of the court were that the application for approval of the Caltex Energy New South Wales Driver’s Agreement 2014 was dismissed. The court did not grant the approval sought by Caltex Petroleum Services Pty Ltd, and the agreement remained unenforceable against drivers employed by Caltex in New South Wales.

Caltex Petroleum Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established