National Union of Workers

[2015] FWC 3049

[2015] FWC 3049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.320 - Application to vary a transferable instrument - agreement

National Union of Workers
(AG2015/2548)

AUSTRALASIAN LUBRICANTS MANUFACTURING COMPANY - PLANT OPERATORS AGREEMENT 2014
(ODN AG2014/7310)  [AE410336]

Oil and gas industry
COMMISSIONER CRIBB	MELBOURNE, 4 MAY 2015

S.320 Application to vary a transferable instrument.

[1] This decision concerns an application by the National Union of Workers (the union, NUW), pursuant to section 320 of the Fair Work Act 2009 (the Act), to vary the Australasian Lubricants Manufacturing Company - Plant Operators Agreement 2014 1 (the transferable instrument). The nominal expiry date of the transferable instrument is 30 June 2016. It was made under the Fair Work Act 2009.

[2] On 17 April 2015, the operations and the majority of employees of the employer, Australasian Lubricants Manufacturing Company Pty Ltd (ALMC), transferred to either Caltex Petroleum Australia (Caltex) or BP Castrol Australia (BP). As a consequence of the transfer, both BP and Caltex will implement alternative superannuation arrangements. Should clause 21 of the transferable instrument remain unvaried, the current provision will give rise to uncertainty and it does not reflect, in part, the proposed new superannuation arrangements. The variation proposed to Schedule A seeks to clarify the redundancy entitlements of certain employees in the event of redundancy after the transfer has occurred. The variation removes any potential or actual uncertainty. The variation to clause 2 provides certainty as to the transfer of the instrument and provides a context for the substantive variations sought in the application.

[3] The transferable instrument is an enterprise agreement made pursuant to an application under section 185 of the Act.

[4] Section 320 of the Act provides as follows:

“320 Variation of transferable instruments

Application of this section

(1) This section applies in relation to a transferable instrument that covers, or is likely to cover, the new employer because of a provision of this Part.

Power to vary transferable instrument

(2) The FWC may vary the transferable instrument:

(a) to remove terms that the FWC is satisfied are not, or will not be, capable of meaningful operation because of the transfer of business to the new employer; or

(b) to remove an ambiguity or uncertainty about how a term of the instrument operates if:

(i) the ambiguity or uncertainty has arisen, or will arise, because of the transfer of business to the new employer; and

(ii) the FWC is satisfied that the variation will remove the ambiguity or uncertainty; or

(c) to enable the transferable instrument to operate in a way that is better aligned to the working arrangements of the new employer’s enterprise.

Who may apply for a variation

(3) The FWC may make the variation only on application by:

(a) a person who is, or is likely to be, covered by the transferable instrument; or

(b) if the application is to vary a named employer award—an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the named employer award.

Matters that the FWC must take into account

(4) In deciding whether to make the variation, the FWC must take into account the following:

(a) the views of:

(i) the new employer or a person who is likely to be the new employer; and

(ii) the employees who would be affected by the transferable instrument as varied;

(b) whether any employees would be disadvantaged by the transferable instrument as varied in relation to their terms and conditions of employment;

(c) if the transferable instrument is an enterprise agreement—the nominal expiry date of the agreement;

(d) whether the transferable instrument, without the variation, would have a negative impact on the productivity of the new employer’s workplace;

(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument, without the variation;

(f) the degree of business synergy between the transferable instrument, without the variation, and any workplace instrument that already covers the new employer;

(g) the public interest.

Restriction on when variation may come into operation

(5) A variation of a transferable instrument under subsection (2) must not come into operation before the later of the following:

(a) the time when the transferable instrument starts to cover the new employer;

(b) the day on which the variation is made.”

[5] In making a decision, I have taken into account the views of the employer and the employees who will be affected by the transferable instrument as varied. All of the parties bound or covered by the Agreement consent or are not opposed to the application.

[6] The nominal expiry date of the transferable instrument is 30 June 2016.

[7] The employer does not claim that a failure to vary the transferable instrument would have a negative impact on productivity or that it would incur significant economic disadvantage.

[8] The matter set out in section 320(4)(f) is not relevant to this application.

[9] I am satisfied that it is in the public interest that the variation be granted.

[10] Taking into account all those matters in section 320 of the Act, I am satisfied that the variation should be granted. An order 2 varying the transferable instrument will be issued in conjunction with this decision.

 1   AE410336

 2   PR566983

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<Price code A, AE410336  PR566985 >