Petrogas Pty Ltd

[2014] FWCA 7506

[2014] FWCA 7506

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Petrogas Pty Ltd
(AG2014/7557)

PETROGAS TANKER DRIVERS / PETROGAS PTY LTD AGREEMENT 2004

Oil and gas industry
COMMISSIONER CRIBB	MELBOURNE, 22 OCTOBER 2014

Application for the termination of the Petrogas Tanker Drivers / Petrogas Pty Ltd Agreement 2004.

[1] Petrogas Pty Ltd (the company) has made an application for the termination of an enterprise agreement after its nominal expiry date. The application was made under section 225 of the Fair Work Act 2009 (the Act). The agreement is the Petrogas Tanker Drivers / Petrogas Pty Ltd Agreement 2004 (the Agreement). The nominal expiry date of the Agreement is 21 April 2006. The Transport Workers Union of Australia (the union) is bound by the Agreement.

[2] Section 226 of the Act provides that the Commission must terminate an agreement following an application made under section 225 if:

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

(b) 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.”

[3] A statutory declaration was received from Mr Ben Wilson, Operations Manager of the company, dated 17 September 2014, together with the letter sent to the one affected employee and the letter sent to the union. The grounds of the application were stated to be that the Agreement only applies to one employee as all of the other employees are covered by the Road Transport and Distribution Award 2010. Termination of the Agreement would therefore align the pay and conditions of all of those employees who are undertaking the same tasks. The employee concerned would also be able to access flexible working arrangements and a racked up rate.

[4] Further, termination of the Agreement would reduce the complexity in the processing of payroll as there is only one person subject to this Agreement and the pay and conditions differ in processing from all of the other employees. It would also remove the requirement to pay hefty penalties which were introduced to balance rostering requirements that no longer apply to the method of business operations. Finally, it would reduce the complexity of scheduling work which would build flexibility in work arrangements and customer service.

[5] The union does not oppose the termination of the Agreement. However, the union did not understand how the Agreement only applies to one employee when originally some five employees were covered by it. The company’s explanation was that its understanding of clause 21 of the Agreement meant that new employees were not automatically covered by the agreement. Rather, it was on the basis of agreement between the employee and the employer. As the changes in the operation of the business which gave rise to the Agreement were only for a short period, the company decided that it was not appropriate to add new employees to the Agreement.

[6] No submissions that the termination of the Agreement would be contrary to the public interest have been received.

[7] On the basis of the material before me, I am satisfied that the termination of the Agreement would not be contrary to the public interest. Further, I have considered the circumstances of the matter, taking into account the views of the union, and have concluded that termination of the Agreement is appropriate.

[8] Therefore, in accordance with section 226 of the Act, I must terminate the Agreement. The application to terminate the Agreement is approved.

[9] The termination will take effect from today’s date, 22 October 2014.

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<Price code A, AG833607  PR556918>