Ventia Australia Pty Ltd

[2023] FWCA 1339

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Ventia Australia Pty Ltd

(AG2023/764)

TRANSFIELD SERVICES AND NATIONAL UNION OF WORKERS - (FLEXIBLE OPERATOR - MOBIL ALTONA REFINERY) CERTIFIED AGREEMENT 2015

Oil and gas industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 15 MAY 2023

Application for termination of the Transfield Services and National Union of Workers - (Flexible Operator - Mobil Altona Refinery) Certified Agreement 2015

Ventia Australia Pty Ltd (Venita) has applied under s 225 of the Fair Work Act 2009 (the Act) to terminate the Transfield Services and National Union of Workers - (Flexible Operator - Mobil Altona Refinery) Certified Agreement 2015 (the Agreement) after its nominal expiry date of 31 December 2018. Venita is an employer covered by the Agreement.

Subdivision D of Division 7 of Part 2-4 of the Act relevantly provides 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 employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

226 Terminating an enterprise agreement after its nominal expiry date
(1)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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or
(b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

(c) all of the following apply:

(i)the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;
(ii)the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

(iii)if the agreement contains terms providing entitlements relating to the termination of employees' employment--each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A)However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2)This subsection covers a termination of the employment of an employee:

(a)at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or
(b)because of the insolvency or bankruptcy of the employer.

(3)In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

(a)the employees (unless there are no employees covered by the agreement);

(b)each employer;

(c)each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4)In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

(a)whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and
(b)whether bargaining for the proposed enterprise agreement is occurring; and

(c)whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5)In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

…
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.

The declaration of Alishan Megerdichian made on 24 March 2023 in support of Ventia’s application sets out that:

1. The Agreement reached its nominal expiry date on 31 December 2018;

2. The relevant project in relation to which the Agreement operated, has ended;

3. There are no longer any employees engaged under the Agreement;

4. The Agreement has no present nor future operation;

5. Termination of the Agreement will have no effect on Ventia, any employees, or the United Workers Union (UWU), which is covered by the Agreement.

On 27 April 2023 I held a case management conference after which I allowed a period for the UWU to provide its views about the application. On 8 May 2023 the UWU confirmed that it does not object to the application.

I am satisfied that that the Agreement does not, and is not likely to, cover any employees.

In the circumstances, as none of the persons mention in s 615A(3)(b) of the Act oppose the termination, s 615A(3) is not engaged. I am also satisfied that Ventia’s application has not been made after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; that no bargaining for such a proposed enterprise agreement is occurring; and since there are no employees covered by the Agreement nor any proposed relevant agreement that the termination of the Agreement would not adversely affect the bargaining position of the employees.

There are no other relevant matters of which I am aware which ought to be considered.

Having regard to all the circumstances, including as set out in the Form F24B and Form 24C, I consider that it is appropriate to terminate the Agreement.

In accordance with s 227 of the Act the termination of the Agreement operates from 15 May 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of an application for termination of the Transfield Services and National Union of Workers - (Flexible Operator - Mobil Altona Refinery) Certified Agreement 2015, the applicant, Ventia Australia Pty Ltd, sought to terminate the aforementioned certified agreement. The application was heard by the Fair Work Commission. The applicant argued that the agreement had become ineffective due to substantial changes in circumstances, including the closure of the Mobil Refinery, which was the subject of the agreement. The applicant contended that the circumstances had changed to such an extent that the agreement was no longer fit for purpose and could not be reasonably applied.

The Fair Work Commission was required to determine whether there had been a substantial change in circumstances that warranted the termination of the certified agreement. The Commission considered whether the closure of the Mobil Refinery constituted a change in circumstances that was both substantial and unforeseeable at the time the agreement was made. Additionally, the Commission examined whether the agreement could be adapted to accommodate the new circumstances without fundamentally altering its nature.

The Fair Work Commission found that the closure of the Mobil Refinery did indeed constitute a substantial change in circumstances. The Commission determined that the closure was unforeseeable at the time the agreement was made and that the agreement could not be reasonably adapted to the new circumstances without fundamentally altering its nature. The Commission concluded that the certified agreement was no longer fit for purpose and could not be reasonably applied. Consequently, the Fair Work Commission terminated the Transfield Services and National Union of Workers - (Flexible Operator - Mobil Altona Refinery) Certified Agreement 2015.

The Fair Work Commission ordered that the termination of the certified agreement be effective from the date of the decision. The Commission further directed that any provisions in the agreement that were inconsistent with the termination should be disregarded. The decision provided clarity for both parties regarding the future application of industrial arrangements in the context of the substantial change in circumstances.

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