Trinity Petroleum Services Pty Ltd

[2015] FWCA 7560

[2015] FWCA 7560

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Trinity Petroleum Services Pty Ltd
(AG2015/5792)

TRINITY PETROLEUM SERVICES PTY LTD CERTIFIED AGREEMENT 2003

Retail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 10 NOVEMBER 2015

Application for termination of the Trinity Petroleum Services Pty Ltd Certified Agreement 2003.

[1] This is an application filed by Trinity Petroleum Services Pty Ltd (the ‘applicant’), pursuant to Item 16, Sch 3 of the Fair Work Transitional and Consequential Amendments Act 2009 (‘the Transitional Act’) and s 225 of the Fair Work Act 2009 (the ‘Act’) to terminate the Trinity Petroleum Services Pty Ltd Certified Agreement 2003 (the ‘Agreement’), a ‘preserved collective State agreement’, within the meaning of Item 2(5)(c)(iii) of the Transitional Act. Relevantly, the Agreement passed its nominal expiry date on 1 September 2005. It is proposed that the relevant employees be covered by the Vehicle Manufacturing, Repair, Services and Retail Award 2010 [MA000089] (the ‘Award’).

[2] The relevant provision of the Act governing this application are set out as follows:

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 employees 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

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement is:

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

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.

[3] In answer to directions issued by the Commission, the applicant filed a statutory declaration of Mr D Pradal, Managing Director. He explained that the Agreement covered Console Operators and Roadhouse Attendants in the applicant’s service stations. There were two other collective instruments covering other employees of the applicant. He also provided a copy of a memo sent to employees dated 13 October 2015, together with a comparative document setting out the terms and conditions of employment under the Award and seeking the views of the employees. In particular, I note that the latter document highlighted that the applicant proposed to pay its employees would be paid a rate of $50 per hour for work performed on public holidays, which is significantly above the Award.

[4] Mr Pradal also provided the Commission with a number of informal email responses provided by staff. While I note that some of these emails raise concerns with rates of pay for work performed on weeknights (which are covered by cl 42 of the Award) and ordinary full time hours per week, I note that the employee feedback was generally positive.

[5] Having considered the applicant’s materials and upon reviewing the application, I am satisfied that all of the requirements of the Act, in particular, ss 225 to 227, have been met. In particular, I am satisfied that it would not be contrary to the public interest to terminate the Agreement. Accordingly, the Trinity Petroleum Services Pty Ltd Certified Agreement 2003 is terminated. Pursuant to s 227 of the Act, the termination is to take effect on, and from 10 November 2015.

DEPUTY PRESIDENT

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