Viva Energy Refining Pty Ltd

[2022] FWCA 1513

[2022] FWCA 1513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Viva Energy Refining Pty Ltd

(AG2021/6742)

Shell Clyde and Gore Bay Terminal Power & Process Control Enterprise Agreement 2012

Oil and gas industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 5 MAY 2022

Application for termination of the Shell Clyde and Gore Bay Terminal Power & Process Control Enterprise Agreement 2012

1. Viva Energy Refining Pty Ltd (Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (Act), to terminate the Shell Clyde and Gore Bay Terminal Power & Process Control Enterprise Agreement 2012 (Agreement).[1] The Agreement is expressed to cover the Applicant and its employees classified under the Agreement employed at Clyde Refinery and/or Gore Bay Terminal sites, including after refining and manufacturing operations cease, and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). ^[2]

1. The Agreement has passed its nominal expiry date.[3]

1. Section 225 of the Act provides:

“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.”

1. Section 226 of the Act provides:

“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.”

1. In support of the application, Ms K Milne of the Applicant provided a declaration dated 22 December 2022. The declaration states, inter alia, that the Agreement historically covered employees who performed engineering trade related work at the Clyde and Gore Bay terminal but that no employees are currently employed under the Agreement.

1. As mentioned above, the CEPU is an organisation which is covered by the Agreement. On 18 August 2021, my Chambers sent correspondence to the CEPU requesting it to advise whether it objects to the application by 25 August 2021. On 31 August 2021, my chambers followed up on this correspondence, seeking a response as soon as possible. On 15 September 2021 my Chambers sent further correspondence to the CEPU seeking a response. On 19 October 2021 my Associate called the CEPU and again asked them to provide a response as soon as possible. No response has been received.

2. Based on the material contained in the employer’s declaration, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

1. The termination will operate from 5 May 2022.

1. An order giving effect to this decision is separately issued in PR741244.

DEPUTY PRESIDENT

[1] AE898032

[2] Ibid at cl 1.4

[3] Ibid at cl 1.4.3

Printed by authority of the Commonwealth Government Printer

<AE898032  PR741243>