Esso Australia Pty Ltd
[2009] FWA 631
•13 OCTOBER 2009
[2009] FWA 631 |
|
DECISION |
Workplace Relations Act 1996
cl.2A(1)(b) Sch. 7—Certified agreement
(AG2009/15285)
ESSO GIPPSLAND (LONGFORD AND LONG ISLAND POINT) CERTIFIED AGREEMENT 2006
(ODN AG2006/3243) [AG847350]
Oil and gas industry | |
COMMISSIONER LEWIN | MELBOURNE, 13 OCTOBER 2009 |
Application to vary the Esso Gippsland (Longford and Long Island Point) Certified Agreement 2006.
[1] In this matter Esso Australia Pty Ltd (Esso) applied on 25 September 2009 to vary the Esso Gippsland (Longford and Long Island Point) Certified Agreement 2006 (the Agreement) (AG847350)pursuant to Schedule 7, Part 2, Clause 2A(1)(a) and (b) of the Workplace Relations Act 1996, (the Act) as continued in force under clause 13 of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
[2] The relevant statutory provisions are set out below:
“2A Commission may extend or vary pre-reform certified agreements
(1) The Commission may, on application by any person bound by a pre-reform certified agreement, by order:
(a) extend the nominal expiry date of the agreement; or
(b) vary the terms of the agreement.
(2) However, before making the order, the Commission must be satisfied that:
(a) all parties bound by the agreement genuinely agree to the extension or variation; and
(b) none of the parties have, after the introduction day:
(i) organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the agreement; or
(ii) applied for a protected action ballot under section 451 in relation to proposed industrial action; and
(c) in the case of a variation – the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under:
(i) any transitional award that would regulate any term or condition of employment of the employees if the employer had been an excluded employer immediately before the reform commencement; and
(ii) any law of the Commonwealth, or of a State or Territory, that the Commission considers relevant.
(3) If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than 3 years after the date on which the order is made.
(4) If the agreement was made under section 170LJ or 170LK of the pre-reform Act, the employees bound by the agreement are taken, for the purposes of paragraph (2)(a), to agree to the extension or variation if a valid majority of the employees bound by the agreement at the time of making the extension or variation agree to it.
(5) Section 170LE of the pre-reform Act applies to deciding whether a valid majority of the employees agree to the extension or variation as if references in that section to making an agreement were references to making the extension or variation.
(6) To avoid doubt, the terms and conditions of employment under a transitional award may, for the purposes of paragraph (2)(c), include terms and conditions that did not apply on the reform commencement, or that have been varied since the reform commencement.
(7) The provisions of the pre-reform Act apply, in relation to an extension or variation to which this clause applies, to the same extent that they apply, because of clause 2, in relation to a variation under paragraph 170MD(6)(a) of the pre-reform Act.
(8) In this clause:
introduction day means the day on which the Bill that became the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into the House of Representatives.”
[3] The agreement was certified on 15 March 2006 by Senior Deputy President Harrison.
[4] The application therefore seeks to vary a pre-reform certified agreement.
[5] Esso has filed an application on Form F26—Application for an order to extend or vary pre-reform certified agreement, as required by the Fair Work Australia rules.
[6] On 1 October 2009 my Associate wrote to Esso, proposing that the application be determined by the Tribunal without convening a hearing. The correspondence was copied to the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (the AMWU), The Australian Workers’ Union (the AWU), the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). On 1 October 2009, correspondence was received in chambers from Dr Graham F Smith of Clayton Utz, on behalf of Esso, confirming that the Applicant did not object to the application being determined without a hearing. On 2 October 2009, an email was received in chambers from Mr Craig Winter of the AWU advising that the AWU did not object to the matter being determined without a hearing. No objection to the Tribunal dealing with the application without a hearing was received from any party.
[7] The Act requires that various conditions and circumstances be satisfied before a pre-reform certified agreement can be varied and/or extended. Esso submitted in its application that such conditions had been met as follows.
“4. The following steps were taken by the Australian Workers’ Union (AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and allied Services Union of Australia (CEPU) and the Australian Municipal, administrative, Clerical and Services Union (ASU) to explain the proposed variation to the employees covered by the Agreement:
(a) early in 2009, AWU, AMWU, CEPU and ASU site representatives discussed the proposed variation with employees;
(b) formal meetings were held with the employees, as follows:
(i) on 19 August 2009, an AWU representative met with operations technicians at Longford who were AWU members;
(ii) on 28 August 2009, AWU and CEPU officials met with members of the AWU, CEPU, AMWU and ASU at Longford. The AWMU and ASU had given authority for the AWU and CEPU to present to the AMWU and ASU members.
(iii) On 26 August 2009, an AWU Long Island Point operation technician delegate met with members of the AWU, CEPU and AMWU and presented to their members with the authority of the AWU, CEPU and AMWU; and
(iv) On 4 September 2009, an AWU official met with Long Island Point AWU operations technicians;
(c) at each of these meetings, hard copies of the proposed variations to the Agreement and the Deed of Arrangement referred to in the variation (Attachment Two) were made available for all employees;
(d) in addition:
(i) at meetings for all non-operations technicians employees, the proposed variations and the Deed of Arrangement were explained on a line-by-line basis; and
(ii) at meetings for all operations technicians, the proposed variations and the Deed of Arrangement were explained and a PowerPoint presentation (Attachment Three) detailing the variations was provided.
5. All employees were given an opportunity, on 4 September 2009, vote on the proposal to extend and vary the Agreement. A valid majority of the employees voted in favour.
6. On 4 September 2009, Esso employees at Longford and Long Island Point were given the opportunity to vote on the proposed variation. A valid majority of the employees voted in favour of the variation.
7. Each of Esso, the AWU, the AMWU and the ASU has prepared a statement in support of this application. These form Attachments Four to Eight to this application
8. Mr William Vickers of Esso has completed a statutory declaration in support of this application. The statutory declaration forms Attachment Nine to this application.”
[8] On what is before me, I am satisfied that the party making the application, Esso is a person bound by the pre-reform certified agreement, as required by Schedule 7, Part 2, Clause 2A(1).
[9] I am satisfied that, for the purposes of Schedule 7, Part 2, Clause 2A(2)(a), that all parties bound by the agreement genuinely agree to the variation. Esso provided a statutory declaration with the application signed by Mr William Vickers, Industrial Relations Manager, Esso Australia Pty Ltd, to this effect. Written statements signed by Mr Gary Robb, of the AMWU, Mr Craig Winter, of the AWU, Ms Ingrid Stitt, of the ASU and Mr Howard Worthing of the CEPU attest to this.
[10] I am also satisfied, for the purposes of Schedule 7, Part 2, Clause 2A(2)(b), that following the “introduction day”, as defined by the Act and set out above, neither party organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the Agreement or applied for a protected action ballot under s.451 of the Act in relation to proposed industrial action. The abovementioned written statements, filed with the Tribunal, attest to this in the following terms.
“None of the parties to the Certified Agreement have after 14 February 2008:
(a) organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the Agreement; or
(b) applied for a protected action ballot under section 451 of the Workplace Relations Act 1996 in relation to the proposed industrial action.”
[11] Schedule 7, Part 2, Clause 2A(2)(c) requires that the agreement as varied, would not result on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the Agreement. In my view, the Agreement as varied would satisfy this provision as the variation sought involves no reduction in the terms and conditions of employment of the employees covered by the agreement. Rather, the Agreement confers only additional and beneficial terms and conditions of employment upon the employees whose employment is subject to the Agreement. The statutory declarations provided to the Tribunal by Esso further attests to this conclusion.
[12] On what is before me, I was satisfied that the provisions of the Act have been met. I therefore determine that the Agreement be varied as sought with effect from 13 October 2009.
[13] An order will be issued accordingly.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<Price code C, AG847350 PR989875 >
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