Viva Energy Australia Pty Ltd

[2025] FWCA 1602

[2025] FWCA 1602

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viva Energy Australia Pty Ltd

(AG2025/897)

VIVA ENERGY AUSTRALIA PTY LTD - BRISBANE AIRPORT ENTERPRISE AGREEMENT 2025

Road transport industry
DEPUTY PRESIDENT BUTLER	BRISBANE, 13 MAY 2025

Application for approval of the Viva Energy Australia Pty Ltd - Brisbane Airport Enterprise Agreement 2025

1. Viva Energy Australia Pty Ltd (“the Employer”) has applied for approval of an enterprise agreement known as Viva Energy Australia Pty Ltd - Brisbane Airport Enterprise Agreement 2025 (“the Agreement”). The Application was made under s.185 of the Fair Work Act 2009 (“the Fair Work Act”). The Agreement is a single enterprise agreement.

1. For the purposes of the Better Off Overall Test, I have considered the Agreement in comparison with the Road Transport and Distribution Award 2020 (“the Award”).

1. In considering this matter I raised issues with the parties for their consideration. The employer provides submissions and the Transport Workers’ Union of Australia (TWU) provided responses, to which the employer relied. However, the TWU subsequently advised it did not press the matters it had raised. I have taken that as meaning the union no longer relies on its submissions to the extent they contradict the Employer’s submissions.

Better off overall test: loaded rates

1. Clause 7.3 of the Agreement appears to provide for loaded (all-in) rates. In light of the decision in SDAEA v Beechworth Bakery Employee Co Pty Ltd t/a Beechworth Bakery,[1] I sought submissions as to whether the Agreement provides for a reconciliation mechanism, and, if not, whether the Agreement nonetheless passes the Better Off Overall Test given the minimum rates provided. I also invited submissions specifically as to the consequences of loaded rates for casuals, having regard to Loaded Rates in Agreements.[2]

1. The Employer conceded that the Agreement does not provide a reconciliation method, but submitted that the loaded rates in the Agreement “substantially pass” the Better Off Overall Test (BOOT). The Employer submitted that a reconciliation mechanism is not required where the Agreement substantially passes the BOOT. I do not accept this correctly states the position; instead the issue is whether notwithstanding the absence of a reconciliation mechanism the Agreement nonetheless passes the BOOT, on the basis of a global assessment.[3]

1. The Employer submitted that while the Common Hourly Rate (CHR) is a loaded rate, it is not fixed, and that if an employee’s ordinary roster is changed to include higher penalty shifts (eg more afternoon and night shifts) the CHR will increase. Using the current roster and work patterns, it submitted, a full time aerodrome operator would be paid approximately 18.4% more under the Agreement than under the Award. Base rates of pay are also approximately 15.8% more for full time employees under the Agreement. The Employer submitted that an employee would need to work over 1000 hours of overtime annually to be paid less under the Agreement. It submitted that there is no practice of consistent and substantial overtime for employees covered by the Agreement, and there are limits on the overtime available to employees based on fatigue management requirements that apply to the aviation and fuel distribution industry. It submitted there was therefore no plausible scenario which would result in employees being paid less under the Agreement than they would under the Award. I accept this submission.

1. The Employer also submitted that an application for reconsideration under s227A of the Fair Work Act would be available to employees if there were future concerns about wage matters that could not be resolved locally. It is not necessary for me to decide whether this is sufficient to address the above issue in relation to loaded rates, given I have accepted the previous submission.

1. The TWU previously submitted that the rates of pay may not be high enough to compensate for all absorbed penalties and there is no reconciliation term to ensure employees are better off.

1. In reply the employer submitted that the calculations and modelling in respect of casual employees had been provided in its declaration in support of the approval application. It submitted that under clause 7.1 of the Agreement, the casual base hourly rate (inclusive of the casual shift premium) is $45.15 per hour. This is $6.61 more per hour than the comparable Award casual oil distribution shiftworker rate of $38.54, being 15.796% more under the Agreement than the Award.

1. It submitted, further, that a comparison of shiftworker penalties shows that casual shiftworkers receive an additional 10% loading on day shifts, which is not provided for casual shiftworkers under the Award.

1. The employer submitted that given the higher base rates of pay under the Agreement, casuals working on afternoon/night shift are paid more under the Agreement for all shifts. It submitted that the maximum amount a casual shiftworker can be paid under the Award for working a public holiday is 275% being equivalent to $85.78 per hour. Under the first year of the Agreement, casuals working on a public holiday will be paid $99.32 per hour. A causal shiftworker working an afternoon or night shift will receive $50.57 per hour under the Agreement in respect of those shifts, whereas under the Award a casual shiftworker would be paid lesser amounts of $43.93 for an afternoon shift and $47.79 for a night shift.

1. It submitted that, accordingly, casual employees under the Agreement are paid substantially above the Award, and are better off overall under the Agreement.

1. The employer submitted that in addition to the CHR, full time employees would receive an annual allowance of $2,452.32, which, it submitted, far exceeds any allowances provided by the Award.

1. As indicated above the TWU no longer presses its submission. I accept the Employer’s reply submissions.

Better of overall test: protections for part-time employees

1. The Road Transport and Distribution Award 2020 requires the employer and any part-time employee to agree on the employee’s hours of work, days of work, starting and finishing times, and classification, before the employee commences work. The Award also provides that this agreement as to hours of work and related matters can be varied by agreement, and that the variation must be in writing.[4]

1. The Agreement is silent on these matters. I sought submissions as to whether the rates of pay in the award to compensate for this reduction in conditions.

1. The Employer submitted that there are no part-time employees covered by the Agreement, but if it engaged a part-time employee in the future, it would be ordinary practice to confirm their ordinary hours of work and coverage under the Agreement in their employment contract. It submitted that although the continuous shift work requirement of the role is confirmed at the commencement of employment, it would not be possible to agree on set start and finish times and specific days of work, other than to confirm that they will be dependent on the 24/7 operational roster in place. It submitted that notification and any changes to rosters are dealt with in accordance with the Agreement.

1. It submitted that given the substantial above-Award rates in the Agreement, any future part-time employees would still be better off under the Agreement than under the Award.    

1. The TWU submitted that the rates of pay may not be high enough to compensate for this non-financial detriment, and the lack of certainty for part-time employees. It argued that an undertaking is therefore required. 

1. In reply the Employer submitted that any non-financial detriment for future part time employees is offset by the substantial higher rates of pay and more beneficial terms and conditions (such as access to the parental leave policy, which currently provides for 26 weeks of paid primary carers leave).

1. It submitted that the better off overall test is not applied as a line by line analysis requiring that no term be less beneficial. It is a global test requiring consideration of advantages and disadvantages to ensure that overall, employees are better off under the Agreement. 

1. It maintained that although there are no current part time employees (or proposals to engage part time employees), any future part time employees would still be better off under the Agreement than under the Award.

1. As stated above the TWU does not press its submissions. I have considered and accept the Employer’s submissions in relation to this issue.

Better off overall test: shift penalties

1. Clause 22.10 of the Award provides that shiftworkers who work on any afternoon or night shift which shift roster does not continue for at least 5 consecutive afternoons or nights must be paid at the rate of 150% of the ordinary hourly rate for the first 3 hours and 200% of the ordinary hourly rate thereafter for each shift.

1. In contrast, clause 5.5 of the agreement provides for a 20% penalty when on afternoon shift and 30% penalty when on a night shift for employees permanently working alternative afternoon and night shifts. I sought submissions as to whether the rates of pay high enough to compensate for this.

1. Relying on Toll Transport Pty Ltd T/A Toll Transport [2022] FWC 3346, the Employer submitted that employees covered by the Agreement do not currently trigger any additional payments under clause 22.10 of the Award as the current shift roster provides for consecutive afternoon or night shifts (as a 24/7 operation).

1. It submitted that on some occasions the afternoon and night shifts attract a 15% penalty under the Agreement (whereas the Award provides for 17.5% or 30% of the base rate). However, given the higher base rate under the Agreement for a full-time employee, 115% of the Agreement base rate (being $41.54 per hour) is higher than 130% of the Award base rate (being $40.08 per hour), and employees are still better off under the Agreement. It submitted that the Agreement also provides for a 10% loading for all other shifts (such as day shift and morning shift) which do not attract a penalty rate under the Award.

1. As indicated above, it submitted that taking into account all available shift penalties and applicable allowances, a full-time aerodrome operator is paid approximately 18.4% more under the Agreement than under the Award, based on current rostering requirements.

1. The TWU submitted that an undertaking is required, because it is unclear whether or not employees engaged under the Agreement would trigger the additional payments required under the Award. It submitted that should these payments be triggered employees will not be better off overall taking into account the wage rates.  

1. In reply, again relying upon Toll Transport Pty Ltd T/A Toll Transport [2022] FWC 3346, the Employer submitted that its shift roster does not currently trigger the non-consecutive afternoon/night shift rate of 150%, and nor has it historically done so.

1. It submitted that as all major Australian airports operate and require refuelling services to be performed 7 days per week and after 6.30pm every night, it is not plausible that employees would be required to work a shift roster that does not contain consecutive afternoon and/or night shifts.

1. It submitted that one of the main changes under the Secure Jobs Better Pay legislation was the clarification of the global assessment. This emphasised that focus should be placed on reasonably foreseeable work patterns rather than theoretical scenarios. It submitted that it is not reasonable foreseeable that commercial airlines and emergency services at Brisbane Airport would cease their 7 day a week operations, or that Brisbane Airport would impose a curfew that would affect the departure (and refuelling) of flights after 6.30pm.

1. Accordingly, it submitted an undertaking was not required.

1. As indicated above the TWU did not press its submissions. I accept the Employer’s submissions.

1. In light of the foregoing, and after having regard to the Statement of Principles as well as the application and declarations filed in this matter, 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.

1. Noting clause 1.6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (“NES”) in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The TWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the TWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 31 January 2028.

DEPUTY PRESIDENT

[1] [2017] FWCFB 1664.

[2] [2018] FWCFB 3610, [121].

[3] Fair Work Act 2009 (Cth) s 193A.

[4] Road Transport and Distribution Award 2020, cl 10.

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