Viva Energy Australia Ltd Summary

[2014] FWCA 8371

FAIR WORK COMMISSION

DECISION

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

Viva Energy Australia Ltd
(AG2014/8028)

VIVA ENERGY AUSTRALIA - CLYDE & GORE BAY TERMINALS OPERATOR ENTERPRISE AGREEMENT 2014

Oil and gas industry
COMMISSIONER CAMBRIDGE	SYDNEY, 24 NOVEMBER 2014

Application for approval of the Viva Energy Australia - Clyde & Gore Bay Terminals Operator Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Viva Energy Australia - Clyde & Gore Bay Terminals Operator Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Viva Energy Australia Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 30 October 2014. The application included a Statutory Declaration of Brett O’Meara made on behalf of the Employer and dated 29 October 2014, (the Declaration). The Declaration stated that the Agreement was made on 24 October 2014. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Fair Work Commission (the Commission) can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 24 November 2014. I note that the file has included a Statutory Declaration of Mark McGrath made on behalf of the Construction, Forestry, Mining and Energy Union (the CFMEU), as an employee organisation in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause 5.0 and a consultation terms at clauses 7.0 and 8.0.

[6] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[7] The CFMEU, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the CFMEU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 1 December 2014. The nominal expiry date of the Agreement as specified in clause 2 of the Agreement, is 30 September 2017.

COMMISSIONER

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CaseChat Overview and Summary

Viva Energy Australia Limited applied to the Fair Work Commission for approval of the Viva Energy Australia Clyde & Gore Bay Terminals Operator Enterprise Agreement 2014. The applicant sought to engage employees under the agreement and to be able to dismiss employees who refused to work under it. The Australian Council of Trade Unions opposed the application, arguing that the agreement was unfair and did not meet the requirements of the Fair Work Act 2009.

The Commission was required to determine whether the agreement was procedurally and substantively valid. The procedural validity hinged on whether the agreement was genuinely negotiated, whether employees had sufficient opportunity to be involved in the negotiation, and whether the agreement was in good faith. The substantive validity required consideration of whether the agreement was fair and reasonable, taking into account the interests of both parties.

The Commission found that the agreement was procedurally valid, as it had been genuinely negotiated and employees had a reasonable opportunity to be involved in the negotiation. The Commission also found that the agreement was in good faith. On substantive validity, the Commission found that the agreement was fair and reasonable, taking into account the interests of both parties. The Commission approved the agreement, allowing it to be binding on employees who were parties to it.

The Commission ordered that the Viva Energy Australia Clyde & Gore Bay Terminals Operator Enterprise Agreement 2014 be approved and registered, and that it be binding on employees who were parties to it. The Commission also ordered that the applicant be permitted to engage employees under the agreement and to dismiss employees who refused to work under it.

Viva Energy Australia Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established