Terminals Pty Ltd Trading AS Quantem Bulk Liquid Storage & Handling

[2025] FWCA 1661

[2025] FWCA 1661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Terminals Pty Ltd Trading AS Quantem Bulk Liquid Storage & Handling

(AG2025/671)

QUANTEM BULK LIQUID STORAGE AND HANDLING REGIONAL SITES ENTERPRISE AGREEMENT 2024

Oil and gas industry
COMMISSIONER FOX	MELBOURNE, 29 MAY 2025

Application for approval of the Quantem Bulk Liquid Storage and Handling Regional Sites Enterprise Agreement 2024.

1. An application has been made for approval of an enterprise agreement known as the Quantem Bulk Liquid Storage and Handling Regional Sites Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). It has been made by Terminals Pty Ltd T/A Quantem Bulk Liquid Storage & Handling (Quantem). The Agreement is a single enterprise agreement.

1. On 24 March 2025, the United Workers’ Union (UWU) filed a Form F18 with the Commission, in which it noted that it opposed the approval of the Agreement due to the following four issues:[1]

1. The agreement provides for a base salary which incorporates all allowances that would otherwise be payable in the award.
2. The agreement requires operators to work an unlimited number of shift extensions and overtime shifts in certain circumstances.
3. The salary rate may not be sufficient to compensate for hours worked and allowances payable under the award.
4. Some employees may not be better off overall on the agreement than under the award.

1. In its Form F18, the UWU further advised that it disagreed with Quantem’s statement that employees under the Agreement will be better off overall, as:[2]

2. Clause 7.13 states that the Annualised Salary in the agreement includes compensation for the work of the Employees role including “reasonable additional hours (including shipping and handover meeting)”.
3. Employees could be required to work every Saturday and Sunday up to 12.5 hours each day for the life of the agreement without receiving any additional payment. The lack of definition of ‘reasonable’ puts the onus of contesting ‘reasonable’ on to individual employees in every single instance it occurs.
4. Employees could be required to work an additional 4.5 hours each day for the life of the agreement without receiving any additional payment. The lack of definition of ‘reasonable’ puts the onus of contesting ‘reasonable’ on to individual employees in every single instance it occurs.
5. The agreement could require employees to work every weekend as part of their standard weekly roster, or permanent nightshift as part of their standard weekly roster, without any additional payment.
6. Any of the circumstances listed in paragraphs 2-5 could result in employees not being

better off overall.

…

1. In my initial correspondence to the parties on 21 March 2025, I also noted a number of issues I had identified with the Agreement and requested Quantem address these by providing further material.

1. Following receipt of submissions and undertakings, I conducted two Conferences and a Case Management Conference with the parties – the first on 26 March 2025, the second on 10 April 2025 and the third on 30 April 2025.

1. Quantem filed submissions and amended undertakings on 9 May 2025. With respect to the question of whether the Agreement should be approved, I requested that parties advise whether they wish for a hearing to be held or for the matter to be determined ‘on the papers’. Quantem advised me of their preference for the latter, and the UWU advised that they did not seek to be heard any further regarding the application. I subsequently advised the parties I would determine the matter on the papers.

Better Off Overall Test (BOOT)

1. On 14 April 2025 Quantem provided undertakings to the Commission and the UWU. The UWU was given the opportunity to respond to the undertakings and on 17 April 2025, provided a response via letter from an entity termed the Bulk Liquids Alliance (BLA) (a group consisting of the UWU, the CFMEU and the MUA). This response sought that the undertakings be further amended. The BLA is not a party to the Agreement. I considered what relevance and regard, if any, I should have to this response. The UWU requested the response be considered that of the UWU only, on the basis that the UWU is a component part of the BLA. Quantem did not object to this. I accepted the response as being the response of the UWU only, as the UWU is a party referenced in clause 3(b) of the Agreement.

1. Clause 7.13 of the Agreement provides for an annualised salary which is in compensation for standard hours of work, shift, weekend and public holiday penalties, reasonable additional hours and penalties, annual leave loading, breaks, and all other allowances. In light of the decision in Shop, Distributive and Allied Employees Association (006N) v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery,[3] I noted that the Agreement did not provide for a reconciliation mechanism for full-time employees and requested submissions on whether the Agreement passed the BOOT based on the annualised salaries in the Agreement.

1. Quantem submit that the Agreement passes the BOOT. In response to the Commission and the UWU’s concerns, it nonetheless provided an undertaking which requires an annual reconciliation be undertaken on each anniversary date. Where an employee has not been paid more under the Agreement, the undertaking requires Quantem to pay the difference between what the employee would have been paid under the Agreement in comparison to the Modern Award within 7 business days plus the payment of an additional 5% of this differential amount if it is determined that the annualised salary paid to the employee pursuant to clause 7.13 is below that which would apply under the applicable Modern Award. 

1. While the UWU advised at the Case Management Conference on 30 April 2025 that they maintain their view that the Agreement does not pass BOOT, they did not make any further submissions on their concerns. After this Conference, I issued Directions providing the UWU with a further opportunity to make submissions regarding the approval of the Agreement, and no further submissions were made.

1. The UWU remain of the view, despite the undertakings provided by Quantem, that the Agreement does not pass the BOOT. However, after considering the undertakings provided, and submissions regarding current rostering and overtime arrangements, I am satisfied that the undertakings provided address the BOOT concerns. It is of course open to the UWU, should future rostering or overtime arrangements differ from the current, to make an application under s.227A of the Act for the Commission to reconsider whether the Agreement passes the BOOT. I am satisfied that, with the undertakings provided, the Agreement passes the BOOT.

1. A copy of the undertakings is attached at 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.

Genuine Agreement

1. At the Conference of 10 April 2025, I also raised concerns with Quantem relating to whether the Agreement was genuinely agreed to. My concern related to the explanation of the terms of the Agreement and their effect, as against the relevant Modern Award, especially where there was no existing agreement in place. I gave the parties an opportunity to file submissions.

1. The UWU did not make any submissions in relation to genuine agreement.

1. Quantem filed submissions with the Commission on the question of genuine agreement, arguing that ‘[t]here is no evidence before the Commission to suggest that the Agreement has not been genuinely agreed to’ and that ‘the Commission can be satisfied that the Agreement was genuinely agreed to between Quantum and the Operators’.[4]

2. After reviewing and considering Quantem’s submissions, including the explanatory materials given to employees, and noting that the UWU did not raise a concern around genuine agreement, I am satisfied that the Agreement was genuinely agreed to having regard to ss.180(5) and 188 of the Act and the Statement of Principles on Genuine Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s.193A (2)-(7).

1. The United Workers’ Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

1. The Agreement is approved, and in accordance with s.54 of the Act, will operate from 5 June 2025. The nominal expiry date of the Agreement is 30 April 2026.

COMMISSIONER

Determined on the papers.

Annexure A

[1] United Workers’ Union Form F18, Declaration of employee organisation in relation to an application for approval of an enterprise agreement (other than a greenfields agreement) page 3/7.

[2] Ibid page 4/7.

[3] [2017] FWCFB 1664.

[4] Applicant’s Outline of Submissions [40], [43].

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