Ocwen Energy Pty Ltd T/A Lowes Petroleum Services

[2021] FWCA 3574

[2021] FWCA 3574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Ocwen Energy Pty Ltd T/A Lowes Petroleum Services
(AG2021/5372)

NO1 RIVERSIDE QUAY AND CENTREL NATIONAL ENTERPRISE AGREEMENT 2016-2020

Vehicle industry
COMMISSIONER SPENCER	BRISBANE, 1 JULY 2021

Application for termination of the No1 Riverside Quay and Centrel National Enterprise Agreement 2016-2020.

[1] An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by Ocwen Energy Pty Ltd T/A Lowes Petroleum Services (the Applicant) to terminate the NO1 Riverside Quay and Centrel National Enterprise Agreement 2016-2020 (the Agreement).

[2] The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 22 February 2021.

[3] Sections 225 and 226 of the Act provide:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

[4] Ms Kerrilyn Gilmour, Human Resources Manager for the Respondent, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Ms Gilmour stated that the termination of the Agreement would allow the Applicant to provide consistency of employment throughout its service station sector network and to rationalise its payroll system. Ms Gilmour further stated that the termination would have no significant impact upon those employees currently employed by the Applicant.

[5] Ms Gilmour stated that during March 2021, those employees covered by the Agreement were sent correspondence by the HR Department of the Applicant, for the purpose of ascertaining their views on the termination of the Agreement. She stated that Employees were informed of the process and that their conditions of employment were proposed to revert to the relevant Modern Award. A copy of this correspondence was provided to the Commission under the cover of Ms Gilmour’s statutory declaration.

[6] Ms Gilmour stated that employees covered by the Agreement were consulted about the process of applying to have the Agreement terminated. This process included follow up contact by telephone and correspondence to each individual employee. Ms Gilmour confirmed that feedback from those employees during the discussions confirmed there was no opposition to the Applicant making the application to have the Agreement terminated.

[7] Ms Gilmour also confirmed in her statement that the Applicant, during the process, reviewed the wages of each employee and with the exception of a small number of employees (seven), the Applciant was satisfied that no employee would be worse off. Those seven employees who the Applicant identified as having the potential to be paid less for certain hours worked when considered against the Modern Award were formally advised in writing and offered the opportunity to have their wages increased, so as to remain better off overall. Copies of this correspondence were provided to the Commission, along with calculations that were provided to employees, confirming that rates of pay offered under the individual flexibility arrangements would exceed those comparative rates under the Modern Award. These documents contained employee signatures confirming that they supported the termination.

[8] The calculations were provided under the cover of a witness statement by Ms Gilmour, for the seven employees who would be subject to an individual flexibility arrangement. The calculations provided, confirmed that the rates for these employees would be better off overall in comparison to the Award.

[9] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 1 July 2021.

[10] I Order accordingly.

COMMISSIONER

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