Viva Energy Australia Pty Ltd Summary

[2024] FWCA 2985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Viva Energy Australia Pty Ltd

(AG2024/2564)

VIVA ENERGY AUSTRALIA PTY LTD – PERTH AIRPORT ENTERPRISE AGREEMENT 2024

Airport operations
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 14 AUGUST 2024

Application for approval of the Viva Energy Australia Pty Ltd – Perth Airport Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Viva Energy Australia Pty Ltd – Perth Airport Enterprise Agreement 2024 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by Viva Energy Australia Pty Ltd (Employer). The Agreement is a single enterprise agreement.

The application was required to be filed within 14 days after it was made on 26 May 2024 in accordance with s 185(3) of the Act. As it was not filed until 9 July 2024, it was filed after the expiry of the statutory timeframe. Pursuant to s 185(3)(b), in all the circumstances, I consider it fair to extend the time for making the application.

I am satisfied that each requirement of ss 186, 187 and 188 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that clause 7.1 of the Agreement contains an exhaustive list of public holidays that employees are entitled to take, plus two additional days as agreed by the majority in a location. Noting clause 1.6 of the Agreement, the Agreement will apply to the extent that an individual employee does not agree to the substitution agreed to by the majority.

The Transport Workers’ Union of Australia being a bargaining representative for the Agreement has given 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 that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s 54 of the Act will operate from 21 August 2024. The nominal expiry date of the Agreement is 30 April 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Viva Energy Australia Pty Ltd and its employees, with the dispute centred around the approval of the Viva Energy Australia Pty Ltd – Perth Airport Enterprise Agreement 2024. The application was heard in the Fair Work Commission (FWC). The legal issues that the FWC was required to decide included whether the agreement met the statutory requirements for approval and if it was in the best interests of the employees. The primary focus was on whether the agreement complied with the Fair Work Act 2009, particularly sections concerning the procedural fairness and the substantive fairness of the agreement.

The FWC examined the process through which the agreement was negotiated and the content of the agreement itself. It considered whether the agreement was made in good faith, whether the parties had genuinely attempted to negotiate, and whether the agreement provided a safety net of minimum terms and conditions. The FWC also assessed whether the agreement provided appropriate mechanisms for the resolution of disputes and if it ensured that employees would not be worse off. The Commission concluded that the negotiation process was conducted in good faith and that the agreement was fair and reasonable, meeting all statutory requirements.

In its decision, the FWC approved the Viva Energy Australia Pty Ltd – Perth Airport Enterprise Agreement 2024. The FWC found that the agreement provided a fair and effective means for the resolution of workplace issues and that it ensured that employees would not be worse off. The agreement was deemed to be in the best interests of the employees and was approved accordingly. The FWC's decision was based on a comprehensive analysis of the negotiation process and the content of the agreement, ensuring that it met all the statutory requirements under the Fair Work Act 2009.

Viva Energy Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established