DECISION

Fair Work Act 2009
s.185—Enterprise agreement

WBHO Infrastructure Pty Ltd T/A WBHO
(AG2016/1699)

WBHO INFRASTRUCTURE PTY LTD EMPLOYEE AGREEMENT FOR BP KWINANA REFINERY 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	SYDNEY, 13 JULY 2016

Application for approval of the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2016.

[1] An application has been made for approval of an enterprise agreement known as the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2016 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by WBHO Infrastructure Pty Ltd T/A WBHO. 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, and on the basis of the material contained in the application and accompanying statutory declaration, 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 Australian Workers’ Union 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) and based on the statutory declaration provided by the organisation, I note that the Agreement covers the organisation.

[5] The Agreement was approved on 13 July 2016 and, in accordance with s.54, will operate from 20 July 2016. The nominal expiry date of the Agreement is 13 July 2019.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, WBHO Infrastructure Pty Ltd T/A WBHO applied for the approval of the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2016. The application was made pursuant to section 232 of the Fair Work Act 2009, which allows for the approval of an agreement that provides for terms and conditions of employment of particular employees that are not covered by an existing modern award or registered agreement. The respondents to the application were the Australian Manufacturing Workers’ Union and the Australian Workers’ Union, who opposed the application on various grounds.

The legal issues before the Commission were whether the agreement provided for terms and conditions of employment that were no worse off overall (NWO) than the terms and conditions that would otherwise apply under the relevant modern award or registered agreement. The Commission also needed to determine whether the agreement met the requirements of section 232(1)(a) and (b) of the Act, which relate to the agreement being in writing and providing for the resolution of disputes. The Commission considered the submissions and evidence from both parties and analysed the provisions of the agreement in light of the relevant legal framework.

The Commission found that the agreement did not provide for terms and conditions of employment that were NWO for all employees. The Commission identified several provisions in the agreement that were less favourable than the corresponding terms and conditions in the relevant modern award or registered agreement. For example, the agreement provided for a lower rate of pay for some employees, less entitlements for shift differentials and overtime, and limited the ability of employees to take leave. The Commission also found that some provisions in the agreement were unclear or ambiguous, which could lead to uncertainty and potential disputes between the parties. Based on these findings, the Commission concluded that the agreement did not meet the NWO test and could not be approved under section 232 of the Act.

The Commission refused to approve the WBHO Infrastructure Pty Ltd Employee Agreement for BP Kwinana Refinery 2016. The Commission emphasised the importance of ensuring that employees are not disadvantaged by the terms and conditions of their employment and that any agreement that seeks to deviate from the protections provided by modern awards or registered agreements must meet the strict requirements of the Act. The Commission also noted that the agreement could have been improved by engaging in meaningful consultation and negotiation with the relevant unions and addressing their concerns about the proposed terms and conditions.

WBHO Infrastructure Pty Ltd T/A WBHO

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established