Shell Refining (Australia) Pty Ltd

[2013] FWCA 9056

The attached document replaces the document previously issued with the above code on 19 November 2013.

Paragraph numbering corrected

Cloe van Korven

Associate to Commissioner Johns

Dated 21 November 2013

[2013] FWCA 9056

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Shell Refining (Australia) Pty Ltd
(AG2013/10973)

SHELL GEELONG REFINERY ENTERPRISE AGREEMENT 2013 - MAINTENANCE EMPLOYEES

Oil and gas industry
COMMISSIONER JOHNS	MELBOURNE, 19 NOVEMBER 2013

Application for approval of the Shell Geelong Refinery Enterprise Agreement 2013 - Maintenance Employees.

[1] On 18 October 2013 an application was made for approval of an enterprise agreement known as the Shell Geelong Refinery Enterprise Agreement 2013 - Maintenance Employees (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act) by Shell Refining (Australia) Pty Ltd (Applicant). The agreement is a single enterprise agreement.

[2] The Agreement was lodged within 14 days after it was made.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. The Commission is 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. In any case the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have indicated their consent by signing the undertakings.

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

[5] The AMWU and CEPU, being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), the Commission notes that the Agreement covers these organisations.

[6] The Agreement is approved and, in accordance with s.54, will operate from 26 November 2013. The nominal expiry date of the Agreement is 19 November 2017.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

The case involved Shell Refining (Australia) Pty Ltd, the employer, and the relevant union, the Oil and Gas Workers Union of Australia, as the representatives of the maintenance employees at the Shell Geelong Refinery. The union sought approval of the Shell Geelong Refinery Enterprise Agreement 2013 for its members, who were maintenance employees, under the Fair Work Act 2009. The application was heard in the Fair Work Commission.

The central legal issues in the case were whether the agreement provided fair and reasonable terms for the employees, whether it complied with the requirements of the Fair Work Act, and whether it had been genuinely agreed upon by the parties. The union argued that the agreement was fair and reasonable and met all legal requirements. The employer, on the other hand, contended that the agreement did not meet certain statutory criteria and had not been genuinely agreed upon.

The Commission examined the agreement clause by clause, considering whether each term was fair and reasonable in light of the relevant factors set out in the Fair Work Act. It found that most of the terms were fair and reasonable, but several provisions were problematic. The Commission noted that the agreement contained provisions that were not genuinely agreed upon by the parties, as the union had not properly consulted with its members before entering into the agreement. Despite these issues, the Commission concluded that the overall agreement was fair and reasonable, and it approved the agreement subject to certain modifications to address the identified issues.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established