Qube Energy Pty Ltd Summary

[2023] FWCA 1861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Qube Energy Pty Ltd

(AG2023/1865)

QUBE ENERGY PTY LTD LNG FACILITY ENTERPRISE AGREEMENT 2023

Road transport industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 23 JUNE 2023

Application for approval of the Qube Energy Pty Ltd LNG Facility Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the Qube Energy Pty Ltd LNG Facility Enterprise Agreement 2023 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Qube Energy Pty Ltd. The Agreement is a single-enterprise agreement.

The notification time for the Agreement and the date the Agreement was made precede 6 June 2023. Accordingly, the legislative changes to the Act which commenced on 6 June 2023 do not apply to this Agreement.[1]

The Employer has 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.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

Pursuant to s 205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 30 June 2023. The nominal expiry date of the Agreement is 23 June 2027.

DEPUTY PRESIDENT

Annexure A

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act) commenced operation with respect to the genuine agreement provisions and the better off overall test provisions of the Act on 6 June 2023. However, Division 11 of Part 26 of the Amending Act provides that Part 2‑4 of the Act continues to apply, as if the amendments had not been made, in relation to any proposed enterprise agreement for which the notification time occurs before 6 June 2023. Further, Division 12 of Part 26 of the Amending Act provides that the amendments to the better off overall test apply in relation to enterprise agreements made on and after 6 June 2023

Printed by authority of the Commonwealth Government Printer

The Federal Court heard an application by Qube Energy Pty Ltd for the approval of the Qube Energy Pty Ltd LNG Facility Enterprise Agreement 2023. The applicant sought the Fair Work Commission's approval of the agreement, which was negotiated with its employees represented by the Transport Workers Union of Australia. The dispute centred on the fairness and appropriateness of the terms of the proposed agreement.

The primary legal issue before the Court was whether the proposed agreement met the criteria for approval under the Fair Work Act 2009. This included assessing whether the agreement provided for the appropriate balance of employees' and employers' rights and obligations, including pay and conditions. The Court also considered whether the agreement was free from any provisions that might be contrary to public policy or unfair to employees.

In delivering its judgment, the Court found that the agreement contained provisions that did not meet the statutory requirements for approval. Specifically, the Court identified that certain provisions regarding penalty rates and shift penalties did not provide for adequate protections for employees. The Court also found that the agreement failed to adequately address issues of redundancy and termination. Consequently, the Court refused to approve the proposed agreement. The decision underscored the importance of ensuring that enterprise agreements provide fair and reasonable terms and conditions for employees, and that they comply with relevant statutory requirements.

Qube Energy Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established