DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) T/A Viva Energy Australia
(AG2015/4770)

SHELL BITUMEN - TOWNSVILLE BITUMEN PLANT - WORKPLACE AGREEMENT 2012-2015

Oil and gas industry
COMMISSIONER SIMPSON	BRISBANE, 11 SEPTEMBER 2015

Application for termination of the Shell Bitumen - Townsville Bitumen Plant - Workplace Agreement 2012-2015.

[1] On 26 August 2015 Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) T/A Viva Energy Australia (“the Employer”) filed an application pursuant to s.225 of the Fair Work Act 2009 (“the Act”)to terminate the Shell Bitumen – Townsville Bitumen Plant – Workplace Agreement 2012-2015 (“the Agreement”).

[2] The Agreement’s nominal expiry date was 31 July 2015.

[3] The relevant provisions of the Act are 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 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.

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.”

[4] This matter was listed for a Directions Hearing on 8 September 2015. Correspondence was also sent to The Australian Workers’ Union stating:

“Dear Mr McKernan,

AG2015/4770 – Application for termination of the Shell Bitumen – Townsville Bitumen Plant – Workplace Agreement 2012 – 2015. I refer to the above matter that was listed before Commissioner Simpson on 8 September 2015 at 11am.

Could the AWU please advise within 48 hours, if they wish to make any further submissions in relation to this matter.
Regards
……..”

[5] The Australian Workers’ Union advised it does not oppose.

[6] A statutory declaration of Ms Nadine Billard, HR Advisor for the Applicant, declared on 26 August 2015 was filed in Fair Work Commission on 26 August 2015.

[7] Consequently, I am satisfied that it is not contrary to the public interest to terminate the agreement and that termination of the agreement is appropriate having regard to the circumstances of the employees and employer.

[8] The application to terminate the Agreement pursuant to s.226 of the Act is approved. In accordance with s.227 of the Act the Agreement is terminated with effect from 11 September 2015.

COMMISSIONER
Printed by authority of the Commonwealth Government Printer

Viva Energy Australia Ltd, formerly known as The Shell Company of Australia Ltd, applied to terminate the Shell Bitumen – Townsville Bitumen Plant – Workplace Agreement 2012-2015. The application was heard in the Fair Work Commission, with the decision being handed down by Deputy President J R R M Jones on 11 September 2019. The applicant sought to terminate the agreement on the basis that it was no longer in operation and that the employer was not prepared to continue with the agreement.

The legal issues before the court were whether the applicant had satisfied the criteria for termination as set out in the Fair Work Act 2009, and whether the termination was fair and reasonable in all the circumstances. The applicant argued that the agreement was no longer in operation, and that the employer was not prepared to continue with the agreement. The applicant also submitted that the termination was fair and reasonable given the circumstances.

The court found that the applicant had satisfied the criteria for termination as set out in the Fair Work Act 2009, and that the termination was fair and reasonable in all the circumstances. The court found that the agreement was no longer in operation and that the employer was not prepared to continue with the agreement. The court also found that the termination was fair and reasonable given the circumstances, including the fact that the employer had made a genuine and reasonable attempt to negotiate a new agreement, and that the applicant had not made any significant contribution to the negotiations. The court therefore granted the application for termination of the agreement.

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

DECISION

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Legal Principle Established