Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) T/A Viva Energy Australia

[2015] FWC 2887

[2015] FWC 2887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222 - Application for approval of a termination of an enterprise agreement

Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) T/A Viva Energy Australia
(AG2015/2443)

SHELL BITUMEN - OPERATIONS AGREEMENT - 2012-2015
[AE897873]

Oil and gas industry
VICE PRESIDENT WATSON	MELBOURNE, 29 APRIL 2015

Application for termination of the Shell Bitumen - Operations Agreement - 2012-2015.

Introduction

[1] This decision concerns an application made by Viva Energy Australia Ltd (Viva) on 17 April 2015 to terminate the Shell Bitumen - Operations Agreement - 2012-2015 (the Agreement) pursuant to s.222 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for a Hearing, by Telephone, on 27 April 2015. Mr B. O’Meara appeared on behalf of Viva Energy Australia Ltd and Mr P. Richardson appeared on behalf of the National Union of Workers (NUW).

[3] After hearing submissions from the parties, I announced my decision that the requirements of the Act had been met and that the Shell Bitumen - Operations Agreement - 2012-2015 must be terminated.

The relevant legislation

[4] Section 223 of the Act states when the Fair Work Commission must approve a termination of an enterprise agreement:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

Submissions

[5] Viva’s application was accompanied by a statutory declaration from Ms N. Billard, Human Resources Manger of Viva, and dated 17 April 2015, which outlines the process undertaken by Viva in relation to the employee vote. The circumstances are that a majority of employees have sought an opportunity to move from enterprise agreement terms and conditions to classified staff terms and conditions. Those who do not agree will have the opportunity of being covered by a negotiated enterprise agreement.

[6] Viva submits that site visits were made by Human Resources to the relevant employees in Birkenhead and Pinkenba in order to present information to them regarding the company’s alternative remuneration/terms and conditions structure. There was one visit to Birkenhead which has four relevant employees and five visits to Pinkenba which has eight relevant employees. On 18 and 19 February 2015, each relevant employee was given sample details of what their personal terms and conditions might look like under the alternative structure and an example employment contract. At the request of employees, individual employment contracts were also provided to the relevant employees. The NUW was advised and offered the opportunity to consult.

[7] The relevant employees were provided with seven days to review the individual employment contracts before being asked to vote on the termination of the current Agreement. I am satisfied that the requirements of s.220(2) have been met as required by s.223(a).

[8] I am satisfied that the termination was agreed to in accordance with s.221(1) of the Act as required by s.223(b). The statutory declaration provides evidence that ten of the twelve employees covered by the Agreement cast a valid vote approving the termination of the Agreement.

[9] There are no other reasonable grounds for believing that the employees have not agreed to the termination (s.223(c)) and the NUW has advised the Commission that it does not oppose the application to terminate the Agreement (s.223(d)).

Conclusion

[10] As indicated earlier, I am satisfied that the requirements of the Act have been met and that the Shell Bitumen - Operations Agreement - 2012-2015 must be terminated. An order to this effect is issued in conjunction with this decision (PR563501).

VICE PRESIDENT

Appearances:

Mr B. O’Meara for Viva Energy Australia Ltd.

Mr P. Richardson for the National Union of Workers.

Hearing details:

2015.

Melbourne - By Telephone.

27 April.

Printed by authority of the Commonwealth Government Printer

<Price code A, AE897873  PR563500 >