Mobil Oil Australia Pty Ltd

[2023] FWCA 3087

[2023] FWCA 3087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Mobil Oil Australia Pty Ltd

(AG2023/3148)

MOBIL YARRAVILLE TERMINAL IMPROVEMENT PLAN AGREEMENT 2023

Oil and gas industry
COMMISSIONER CONNOLLY	MELBOURNE, 22 SEPTEMBER 2023

Application for approval of the Mobil Yarraville Terminal Improvement Plan Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Mobil Yarraville Terminal Improvement Plan Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Mobil Oil Australia Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 14 September 2023.

1. The notification time for the Agreement under s.173(2) was 7 July 2022 and the Agreement was made on 28 August 2023.  Accordingly, the genuine agreement requirements the Agreement is to be assessed under are those applying before 6 June 2023 and the better off overall test (BOOT) is that applying on and from 6 June 2023. [1] 

1. On 18 September 2023, the Employer was invited to address aspects of the Agreement including through the provision of an undertaking.

1. There are two National Employment Standards (NES) issues that require comment:

• Public Holidays During Annual Leave – Clause 16.1 of the Agreement provides that where a public holiday falls within a period of annual leave, the employee will not be entitled to an extra day of annual leave should the employee have been rostered for a shift on that day. This is inconsistent with s.89(1) of the Act, which states that if the period during which an employee takes paid annual leave includes a day that is a public holiday, the employee is taken not to be on paid annual leave for that public holiday.

• Public Holidays – clause 22 of the Agreement provides a list of public holidays which are recognised by the employer, which are similar and more beneficial than the list provided for in s.115 of the Act, however, does not provide that the employer will recognise public holidays that are otherwise declared or prescribed by a state, as per s.117(1)(b) of the Act.

1. Clause 4.4 of the Agreement acts as an effective NES precedence clause, in that it states “The National Employment Standards (NES) apply to all Operators as a minimum standard. If there is an inconsistency between the NES and a clause of this Agreement, the NES will apply, except to the extent that the clause of the Agreement provides for a more beneficial outcome for Operators compared to the NES”. As a result of the NES precedence clause, the above clauses will not apply to the extent that they are inconsistent with the NES.

1. The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

1. I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act as are relevant to this application for approval have been met.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 30 June 2026.

COMMISSIONER

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

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