Puma Energy (Australia) Bitumen Pty Ltd
[2024] FWCA 2227
•14 JUNE 2024
| [2024] FWCA 2227 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.225—Enterprise agreement
Puma Energy (Australia) Bitumen Pty Ltd
(AG2024/2029)
PUMA ENERGY (AUSTRALIA) BITUMEN TERMINALS COLLECTIVE AGREEMENT 2020
| Oil and gas industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 14 JUNE 2024 |
Application for termination of the Puma Energy (Australia) Bitumen Terminals Collective Agreement 2020. Application for termination of the Puma Energy (Australia) Bitumen Terminals Collective Agreement 2020
Puma Energy (Australia) Bitumen Pty Ltd (Puma) made an application for the termination of the Puma Energy (Australia) Bitumen Terminals Collective Agreement 2020 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is expressed to cover employees employed at a Bitumen Terminal or Plant as Maintenance Supervisors, Maintenance Technicians and Terminal Operators.
Sections 225 of the Act, and 226 of the Act as amended by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) 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
(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or
(c) all of the following apply:
(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;
(iii)if the agreement contains terms providing entitlements relating to the termination of employees’ employment—each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.
(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.
(2)This subsection covers a termination of the employment of an employee:
(a)at the employer’s initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.
(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:
(a)the employees (unless there are no employees covered by the agreement);
(b)each employer;
(c)each employee organisation (if any).
Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).
(4)In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:
(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and
(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.
(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.”
The application was accompanied by a F24C declaration completed by Ms Joyann Hudson (HR Business Partner). Ms Hudson provided the following reasons for the termination of the Agreement: “there are no employees employed in the business and therefore there are no employees employed under” the Agreement.
The application and declaration (Forms F24B and F24C) were provided to the Australian Workers Union (AWU) who were covered by the Agreement. The AWU confirmed that there were no employees covered by the Agreement and that they do not object to the Agreement being terminated.
The employer has applied for the termination of the Agreement.
I am satisfied that the agreement does not, and is not likely to, cover any employees (per s.226(1)(b)) and that it must be terminated. I note the submissions of the Applicant that another Agreement has already been negotiated that covers the majority of the classifications in the Agreement. On that basis I am satisfied that none of the criteria in s.226(4) are applicable in this matter and that there are no other relevant matters to take into account in deciding whether to terminate the Agreement (s.226(5)).
The termination will operate from the date of this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<AE509796 PR776062>
0
0
0