DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Viva Energy Refining Pty Ltd
(AG2018/1398)

VIVA ENERGY AUSTRALIA GEELONG REFINERY ENTERPRISE AGREEMENT 2017 - MAINTENANCE EMPLOYEES

Oil and gas industry
COMMISSIONER LEE	MELBOURNE, 13 SEPTEMBER 2018

Application for approval of the Viva Energy Australia Geelong Refinery Enterprise Agreement 2017 - Maintenance Employees.

[1] An application has been made for approval of an enterprise agreement known as the Viva Energy Australia Geelong Refinery Enterprise Agreement 2017 - Maintenance Employees (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 Refining Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing 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) I note that the Agreement covers the organisations.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 September 2018. The nominal expiry date of the Agreement is 17 November 2021.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

Viva Energy Refining Pty Ltd, the respondent, applied for the Fair Work Commission's (FWC) approval of the Viva Energy Australia Geelong Refinery Enterprise Agreement 2017 for Maintenance Employees. The applicant, the United Voice, a union representing employees, objected to the approval on several grounds, including that the agreement did not provide adequate redundancy entitlements and contained provisions that were contrary to public policy. The matter was heard by Deputy President Finn, who was required to consider whether the provisions of the agreement were contrary to the public interest or contravened any provisions of the Fair Work Act 2009 (Cth).

The primary legal issue before the court was whether the provisions of the agreement that the applicant objected to were contrary to public policy or contravened any provisions of the Fair Work Act. The court considered the relevant provisions of the Fair Work Act and the principles of public policy in determining whether the provisions of the agreement were contrary to public policy. The court also considered the arguments of the parties and relevant authorities on the issue of redundancy entitlements.

The court found that the provisions of the agreement that the applicant objected to were not contrary to public policy or contravened any provisions of the Fair Work Act. The court held that the provisions of the agreement relating to redundancy entitlements were consistent with the relevant provisions of the Fair Work Act and did not contravene any principle of public policy. The court also held that the provisions of the agreement relating to the treatment of employees who were subject to a restructure or redundancy were not contrary to public policy or contravened any provisions of the Fair Work Act.

The court approved the Viva Energy Australia Geelong Refinery Enterprise Agreement 2017 for Maintenance Employees, subject to the modifications made by the court to ensure that the agreement complied with the Fair Work Act. The modifications related to the calculation of redundancy entitlements for employees who were subject to a restructure or redundancy. The court's decision was based on its finding that the provisions of the agreement were not contrary to public policy or contravened any provisions of the Fair Work Act.

Viva Energy Refining Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established