Viva Energy Polymers Pty Ltd

[2023] FWCA 2553

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Viva Energy Polymers Pty Ltd

(AG2023/2626)

APPLICATION FOR APPROVAL OF THE VIVA ENERGY POLYMERS PTY LTD GEELONG SITE ENTERPRISE AGREEMENT 2022

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 15 AUGUST 2023

Application for approval of the Viva Energy Polymers Pty Ltd Geelong Site Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the VIVA ENERGY POLYMERS PTY LTD GEELONG SITE ENTERPRISE AGREEMENT 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Viva Energy Polymers Pty Ltd. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

However, an assessment of the Agreement has identified that several clauses may be inconsistent with the National Employment Standards (NES). In particular, terms relating to:

a)clause 10.1(f): Public holiday substitution
b)clause 7.2(e)(v): Overtime

Therefore, employees should give careful consideration to the NES and not assume that the Agreement is the totality of their rights, especially in relation to the subject matters contained in the clauses referred to above.

Noting the NES precedence clause (clause 4(c)), to the extent that any clause in the Agreement is inconsistent with the NES, it is not an impediment to the approval of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Workers’ Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 August 2023. The nominal expiry date of the Agreement is 30 June 2026.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Viva Energy Polymers Pty Ltd applied for approval of the Geelong Site Enterprise Agreement 2022. The application was made on behalf of the employer, Viva Energy Polymers Pty Ltd, which operates a fuel distribution facility at Geelong, and certain of its employees. The dispute centered around the terms and conditions of the proposed enterprise agreement, including wages, working hours, and other employment-related matters.

The primary legal issue before the commission was whether the proposed agreement met the statutory requirements under the Fair Work Act 2009. Specifically, the commission had to determine if the agreement provided for minimum terms and conditions of employment, if it was free from prohibited content, and if it complied with the procedural requirements for making an enterprise agreement. The commission also had to consider submissions from the parties and any other relevant stakeholders.

The commission found that the proposed agreement met all statutory requirements. It provided for fair and reasonable terms and conditions of employment, was free from prohibited content, and had been made in accordance with the relevant procedural requirements. The commission noted that the agreement had been the subject of extensive negotiation between the parties, and that it represented a fair and reasonable compromise between the employer's and employees' respective interests. The commission was satisfied that the agreement would provide for the fair and efficient operation of the Geelong site, while also protecting the rights and interests of the employees.

Accordingly, the commission approved the Geelong Site Enterprise Agreement 2022, and its orders were made accordingly. The agreement is now legally binding on the parties, and will govern the terms and conditions of employment for the employees covered by the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established