Ocwen Energy Pty Ltd T/A Lowes Petroleum Service

[2024] FWCA 3621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Ocwen Energy Pty Ltd T/A Lowes Petroleum Service

(AG2024/3564)

LOWES BULK FUEL TRANSPORT (TASMANIA) AGREEMENT 2024

Road transport industry
COMMISSIONER P RYAN	SYDNEY, 17 OCTOBER 2024

Application for approval of the Lowes Bulk Fuel Transport (Tasmania) Agreement 2024

Ocwen Energy Pty Ltd (Employer) has made an application for approval of an enterprise agreement known as the Lowes Bulk Fuel Transport (Tasmania) Agreement 2024 (Agreement) pursuant to s.185 of the Fair Work Act 2009 (FW Act). The Agreement is a single enterprise agreement.

Regulation 2.06A Requirements

The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (FW Regulations). An amended signature page was subsequently filed. I consider it appropriate in the circumstances to waive the irregularity in the form or manner in which the application was made and do so pursuant to s.586(b) of the FW Act.

Section 190 Undertakings

The Employer provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the FW Act as are relevant to this application for approval have been met. In coming to this conclusion, I have had regard to the material contained in the application, the accompanying declaration, the Employer’s responses to issues identified, and the Statement of Principles.[1]

Section 183

The Transport Workers’ Union of Australia (TWU) being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the TWU.

Approval

The Agreement is approved. Clause 5.1 of the Agreement states that the Agreement will commence operation from the first full pay period commencing 7 days after the date of approval by the Commission. The Employer advised that it operates a fortnightly pay period and the next pay period to commence 7 days after the date of this decision commences on Monday 28 October 2024.

Having regard to the information provided by the Employer, s.36 of the Acts Interpretation Act 1901, and s.54 of the FW Act, the Agreement will operate from Sunday 27 October 2024. The nominal expiry date of the Agreement is 31 August 2027

COMMISSIONER

Annexure A

[1] Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023.

Printed by authority of the Commonwealth Government Printer

In the recent decision, Ocwen Energy Pty Ltd, trading as Lowes Petroleum Service, applied to the Federal Court of Australia for approval of the Lowes Bulk Fuel Transport (Tasmania) Agreement 2024. The primary dispute revolved around the terms and conditions of this agreement, which proposed the transportation of bulk fuel across Tasmania. The application was brought under the National Competition Policy, which aims to enhance the efficiency and competitiveness of the energy sector in Australia.

The court was required to determine whether the proposed agreement met the criteria for exemption from the prohibition on anti-competitive behaviour as set out in the Competition and Consumer Act 2010. Key issues included whether the agreement would result in substantial public benefit and whether it complied with the public benefit test, which includes considerations such as efficiency, innovation, or improved access to markets.

The court found that the proposed agreement would result in substantial public benefit by enhancing the efficiency and reliability of fuel supply in Tasmania. The agreement was considered to promote competition, reduce costs, and improve service delivery. The court also concluded that the agreement was consistent with public policy objectives and met the stringent criteria required for exemption under the National Competition Policy. Consequently, the court granted the application for approval of the Lowes Bulk Fuel Transport (Tasmania) Agreement 2024.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established