Upstream Production Solutions

[2019] FWCA 4932

[2019] FWCA 4932

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Upstream Production Solutions
(AG2019/1685)

UPSTREAM PRODUCTION SOLUTIONS PTY LTD PERTH BASIN ENTERPRISE AGREEMENT 2014

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 25 JULY 2019

Application for termination of the Upstream Production Solutions Pty Ltd Perth Basin Enterprise Agreement 2014- AG2014/8060.

[1] Upstream Production Solutions Pty Ltd (Upstream)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Upstream Production Solutions Pty Ltd Perth Basin Enterprise Agreement 2014 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 December 2016.

[3] The parties to the Agreement are Upstream and the employees covered in the classifications in the Agreement in respect of work undertaken by those employees within the Perth Basin Operations (Employees).

[4] Section 225 of the FW Act states:

“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.”

[5] Section 226 of the FW Act states:

“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 if:

(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.”

[6] In support of the Application, Upstream filed a statutory declaration by Mr Christopher Bromwell (Bromwell Declaration).

[7] On 12 June 2019, Directions were issued with respect to the Application. Upstream was directed to file inter alia an outline of submissions as to why the Agreement should be terminated which addresses the requirements of section 226 of the FW Act and any evidence on which Upstream seeks to rely in support of the Application. Upstream was also directed to provide a copy of the Application, the Bromwell Declaration, the Directions, and all materials filed in accordance with the Directions to all Employees covered by the Agreement.

[8] On 21 June 2019 Upstream filed with the FWC a statutory declaration confirming the Directions had been complied with.

[9] The Directions invited Upstream and any Employee wishing to be heard with respect to the Application to contact my Chambers by Thursday 27 June 2019. If no such contact was made, it was advised that a conclusion about the Application would be made on the written materials filed in accordance with the Directions.

[10] No contact has been made to Chambers from Upstream or any Employee wishing to be heard with respect to the Application up to the date of this decision.

Consideration

[11] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that Upstream has standing to make the Application pursuant to section 225(a) of the FW Act.

[12] The Bromwell Declaration states that each Employee who was covered by the Agreement participated in and voted on a new national enterprise agreement (2019 Agreement). The 2019 Agreement was approved by the FWC on 7 May 2019 and commenced operation on 14 May 2019. According to Mr Bromwell in the course of negotiations for the 2019 Agreement Employees were advised of and agreed that Upstream would apply to the FWC to terminate the Agreement once the 2019 Agreement was approved by the FWC.

[13] Upstream submit that it is in the interests of the Employees that the Agreement is terminated because Employees are better off under the 2019 Agreement. They also submit that the termination will increase productivity by allowing Employees to work across multiple sites and reduce costs associated with administering multiple expired agreements.

[14] Based on the material filed in support of this Application, there is nothing before me that raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[15] No opposition to the Application was received for, or on behalf, of any Employees or any organisation entitled to represent them. Based on the material filed in support of the Application I am satisfied that it is appropriate to terminate the Agreement.

[16] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[17] The termination will come into effect from 25 July 2019.

DEPUTY PRESIDENT

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