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

[2015] FWCA 2786

[2015] FWCA 2786

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.222—Enterprise agreement

Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) T/A Viva Energy Australia
(AG2015/2330)

SHELL BITUMEN-LAVERTON PLANT-WORKPLACE AGREEMENT 2012-2015

Oil and gas industry
COMMISSIONER CRIBB	MELBOURNE, 22 APRIL 2015

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

[1] Viva Energy Australia Ltd (Viva Energy, the Applicant) has made an application under section 222 of the Fair Work Act 2009 (the Act) for approval to terminate the Shell Bitumen-Laverton Plant-Workplace Agreement 2012-2015 1 (the Agreement). The application was accompanied by a statutory declaration from Mr Brett O’Meara, Human Resources Manager of Viva Energy, dated 2 April 2015.

[2] The statutory declaration outlined the process undertaken by the Applicant in relation to the vote of the employees. There were three site visits by Human Resources to present to the relevant employees information on the company’s alternative remuneration/terms and conditions structure. Each employee was given, on 18 February 2015, example details of what their personal terms and conditions might be under the alternative structure and an example employment contract. It was stated that the relevant union (Australian Workers Union (the union)) was advised and offered the opportunity to consult. 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. On the material before me, I am satisfied that the requirements of section 220(2) of the Act have been met.

[3] The statutory declaration provided evidence that all of the employees covered by the agreement cast a valid vote approving the termination of the Agreement. On the material before me, I am satisfied that, pursuant to section 221(1) of the Act, the employees were asked by the employer to approve the termination and that the termination of the Agreement was agreed to.

[4] The application was made Viva Energy Australia Ltd (formerly The Shell Company of Australia Ltd) which is covered by the Agreement (section 222(1)). The application was accompanied by a statutory declaration as required by section 222(3).

[5] The statutory declaration, dated 2 April 2015, provided that the termination was agreed to on 1 April 2015. I am satisfied that the application was made within 14 days after the termination was agreed to (section 222(3)).

[6] Section 223 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.222 of the Act:

“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.”

[7] As detailed above, I am satisfied that the employer complied with section 220(2) of the Act (section 223(a)). I have also stated that I am satisfied that the termination was agreed to in accordance with section 221(1) of the Act (section 223(b)).

[8] There are no other reasonable grounds for believing that the employees have not agreed to the termination (section 223(c)).

[9] The Australian Workers Union has advised the Commission that it does not oppose the application to terminate the agreement (section 223(d)).

[10] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to section 223 of the Act, I must approve the termination of the Agreement.

[11] The termination of the Agreement will take effect on the date of this decision, in accordance with section 224 of the Act.

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