DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Industrial and Protective Coatings (QLD) Pty Ltd
(AG2015/4901)

INDUSTRIAL AND PROTECTIVE COATINGS (QLD.) PTY. LTD. BP REFINERY (BULWER ISLAND) ENTERPRISE AGREEMENT 2013-2016

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 15 SEPTEMBER 2015

Application for termination of the Industrial and Protective Coatings (Qld.) Pty. Ltd. BP Refinery (Bulwer Island) Enterprise Agreement 2013-2016.

[1] On 8 September 2015 Industrial and Protective Coatings (QLD) Pty Ltd filed an application pursuant to s.222 of the Fair Work Act 2009 (“the Act”)to terminate the Industrial and Protective Coatings (Qld.) Pty. Ltd. BP Refinery (Bulwer Island) Enterprise Agreement 2013-2016 (“the Agreement”).

[2] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[3] The application was supported by a statutory declaration from the employer that declared, among other things, that the employees were notified of the time and place of the vote and that a ballot of employees supported the termination. Based on the material that is before me including the statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met.

[4] In accordance with s.224 of the Act, the termination will come into effect today.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Industrial and Protective Coatings (QLD) Pty Ltd is a case involving an application to terminate the Industrial and Protective Coatings (Qld.) Pty Ltd BP Refinery (Bulwer Island) Enterprise Agreement 2013-2016. The applicant, BP Australia, sought termination of the agreement, citing significant changes in the industry and the company’s operational circumstances. The Fair Work Commission was the court in this matter, tasked with determining the application’s merits.

The primary legal issues before the Commission included whether the changes in the industry and the company’s circumstances were sufficiently significant to justify the termination of the enterprise agreement. The Commission needed to consider the legal requirements for terminating an enterprise agreement under the Fair Work Act 2009, including whether the changes were unforeseen at the time the agreement was made and whether the changes had a significant adverse effect on the employer’s ability to operate efficiently, economically, and competitively.

The Fair Work Commission, in its decision, analysed the evidence provided by BP Australia regarding the changes in the industry and their impact on the company’s operations. The Commission concluded that the changes were significant and unforeseen, and they adversely affected BP Australia’s operational efficiency. However, the Commission also considered the impact of the termination on the employees and determined that the public interest in maintaining stable industrial relations outweighed the benefits of terminating the agreement. Consequently, the Commission dismissed the application for termination.

The final orders of the Commission included the rejection of BP Australia’s application to terminate the enterprise agreement and a direction for both parties to continue to act in good faith to resolve any disputes that may arise under the agreement.

Industrial and Protective Coatings (QLD) 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