Epic Energy South Australia Pty Ltd

[2020] FWCA 5441

[2020] FWCA 5441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Epic Energy South Australia Pty Ltd
(AG2020/2812)

EPIC ENERGY SA (EESA) ENTERPRISE AGREEMENT 2017 TO 2019

Oil and gas industry
COMMISSIONER HAMPTON	ADELAIDE, 15 OCTOBER 2020

Application for termination of the Epic Energy SA (EESA) Enterprise Agreement 2017 to 2019.

[1] This decision concerns an application by Epic Energy South Australia Pty Ltd (Epic Energy or the Applicant) under s.225 of the Fair Work Act 2009 (the FW Act). The application seeks to terminate the Epic Energy SA (EESA) Enterprise Agreement 2017 to 2019 (the Agreement). The Agreement was approved by the Commission on 20 April 2017. 1 The Agreement commenced operation on 27 April 2017 and has a nominal expiry date of 31 December 2019. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), is also covered by the Agreement.

[2] A hearing by telephone was conducted in this matter on 15 October 2020. At the conclusion of that hearing I expressed my intention to terminate the Agreement and indicated that I would subsequently provide a written decision.

[3] The FW Act relevantly provides:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

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 it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The application was accompanied by a statutory declaration of Mr Clive D’Cruz, Chief Executive Officer for Epic Energy, relevantly setting out the grounds for the application to terminate the Agreement. Those grounds included contentions to the effect of the following:

•  The termination will have limited effect, as a replacement enterprise agreement 2 has commenced for all employees, save for the Pipeline Controller Group, who did not wish to be covered by the new agreement and instead sought individual agreements;

• After extensive consultation was completed, each of the Pipeline Controllers has agreed to the terms of their respective individual agreements and acknowledged their consent to change from coverage from an enterprise agreement to an individual agreement;

• The termination of the Agreement will ensure Epic Energy is able operate efficiently without the requirement to apply both this Agreement and the replacement agreement;

• This termination promotes the objects of the Act, particularly the object of establishing a flexible system that promotes productivity and provides Epic Energy and the Pipeline Controllers the flexibility to determine the applicable terms and conditions of employment; and

• The termination of the Agreement would not disadvantage the affected employees, noting that there was increased remuneration provided, the increase in ordinary hours from 37.5 to 40 is compensated by the increased remuneration, greater flexibility to review individual salaries, and additional notice of termination provided.

[5] Given the status of the Agreement, Epic Energy is entitled to apply for its termination pursuant to s.225 of the FW Act.

[6] In the lead up to the hearing of this matter, directions were issued requiring Epic Energy to ensure that the affected employees were aware of this hearing and provide details for any affected employee to make a contribution about the application to terminate the agreement. Mr Gary Sharp, one of the Controllers involved, participated in the hearing and confirmed support of the employees for the termination of the Agreement. This position was reinforced by the absence of disadvantage, due to the new arrangements, and the fact that the Controllers expressly sought exclusion from the 2020 enterprise agreement.

[7] The CEPU, being a party covered by the Agreement, was notified of the hearing by way of a Notice of Listing. Mr Simon Pisoni, on behalf of the CEPU, subsequently notified my Chambers by email that the Union did not oppose the application. Given this fact and the import of the statutory declaration of Mr D’Cruz and the views of the Controllers involved, I am satisfied that all affected parties support, or at least do not oppose, the application.

[8] In determining this mater, I note that the Commission in approving the 2020 enterprise agreement accepted that the group of employees, which excluded the Pipeline Controllers, was fairly defined and had been genuinely agreed. 3 I also observe that the Gas Industry Award 2020 has been used by the parties in this matter for safety net purposes.

[9] Having had regard to the material provided with the application and during the hearing, I am satisfied that it would not be contrary to the public interest to terminate the Agreement and that it is appropriate in all of the circumstances, including having regard to the views of the employer, employees and the CEPU to do so. Given these findings and the terms of the FW Act provided in s.226, the Commission is obliged to terminate the Agreement.

[10] The Agreement is terminated, and the termination will take effect on and from 11:59 pm on 24 October 2020.

COMMISSIONER

 1   [2017] FWCA 2210

 2   Epic Energy SA (EESA) Enterprise Agreement 2020 to 2022 (the 2020 enterprise agreement) has an operative date of 17 September 2020.

 3 This arises from the approval requirements set out in sections 186(3) and 188 and related provisions of the FW Act.

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