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[2010] FWAA 1937

DECISION Fair Work Act 2009 s.185—Approval of enterprise agreement

BP Australia Pty Ltd (AG2010/384)

BP AUSTRALIA PTY LTD NORTH FREMANTLE BUNKERING OPERATIONS ENTERPRISE AGREEMENT 2009

Oil and gas industry

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 8 MARCH 2010

Application for approval of the BP Australia Pty Ltd North Fremantle Bunkering Operations Enterprise Agreement 2009. [1] An application has been made for approval of an enterprise agreement known as the BP Australia Pty Ltd North Fremantle Bunkering Operations Enterprise Agreement 2009 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement. [2] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met. [3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services 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. [4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 15 March 2010. The nominal expiry date of the Agreement is 31 December 2010. SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code A, AE874677 PR994782>

BP Australia Ply Ltd

North Fremantle Bunkering Operations

Enterprise Agreement 2009

1. Parties to the agreementThe parties to the agreement will be as follows;

• BP Australia Pty Ltd as the employer, and• The employees of BP Australia Pty Ltd engaged in the classifications contained herein.• The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and

Allied Services Union of Australia,

2. Application of AgreementThis agreement will apply to the employer and to their employees engaged in pipeline bunkering,bulk fuel terminal operation, fuel drumming operations and all works incidental to the maintenanceand operation of BP Australia Pty Ltd's North Fremantle Fuel Terminal.

3. Duration of AgreementThe agreement shall apply from the date of approval with Fair Work Australia until 31 December2010.

4. Purpose of AgreementThe purpose of the agreement is to provide comprehensively the wages and conditions ofemployment for the work performed described herein. The agreement is a stand alone documentand applies to the exclusion of any applicable award.

5. Contract of Employment

5.1 EngagementThe employment shall be full time or part time. The employee will be notified at the time ofengagement of the employment status.

All full time and part time employees will be subject to a 6 month probation period at thecommencement of their employment.

Employees shall be multi-skilled and work in a completely flexible workplace not only to increaseproductivity but also to provide employees with more satisfying and challenging jobs and enhancetheir career growth opportunities. All employees will be required to perform a diverse range offunctions including but not restricted to pipeline bunkering, bulk fuel terminal operations, fueldrumming operations and associated maintenance works

There shall be no demarcation or restrictions between functions or organisational status includingbetween traditional crafts, occupations, or vocations or callings. There will be no restrictions inrespect to any works carried out in the facilities by a graded salaried position or a third party orcontractor.

An employee may be required to, and shall perform, any function providing the employee has therequired expertise to safely discharge the requisite and provided that, such functions shall besubject to safe, leqaland practical work practices.

The level of flexibility and skill is comprehended in the wage rates for each classification.

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5.2 TerminationA full time employee's termination shall be in accordance with the provisions of the Fair Work Act2009. The period of notice to be given by the employer shall be as follows:

Where the employee's period of continuous service with The period ofthat emQlover is: notice is:Up to 1 year 1 week1 year or more but less than 3 years 2 weeks3 years or more but less than 5 years 3 weeks5 years or more 4 weeks

This period of notice shall be increased by one week where the employee is over 45 years of ageand has completed two years of continuous service with the employer.

The period of notice to be given by the employee shall be one week. Where less than one weeksnotice is given by the employee the employer is entitled to deduct one weeks pay from theemployee's termination payment.

Payment in lieu of notice shall be made if the appropriate notice period is not given. Theemployment may be terminated by part of the period of notice and part payment in lieu. Paymentin lieu of notice shall be at the employee 's ordinary weekly wage for the ordinary hours not workedby the employee during the period of notice. Nothing in this clause shall affect the right of theemployer to summarily dismiss an employee for conduct that justifies this action.

5.3 ConsultationThe parties to the agreement will be bound by the consultation term in Schedule 1.

5.4 FlexibilityThe parties to the agreement will be bound by the flexibility term in Schedule 2.

6. Classification and Wage Rates

6.1 Wage ratesThe wage rates for each classification are as prescribed below. The rates compensate for allspecial skills and/or disabilities and/or special rates (Rates are given per hour for ordinary hours ofwork) .

Classification Weekly HourlyBunkerinq Attendant Base $874.96 $24.99

Bunkering Attendant Level 1 $926.97 $26.48Bunkerinq Attendant Level 2 $978.92 $27.96Bunkering Attendant Level 3 $1030.91 $29.45

These wage rates will become effective 1 January 2009.

These wage rates will increase by 4 % on 1 January 2010.

6.2 First Aid AllowanceA qualified employee appointed by the employer to perform first aid duty shall be paid $14.90 perweek .

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6.3 SuperannuationThe employer shall pay a minimum of 9% of the ordinary time earnings to satisfy the statutoryrequirements for occupational superannuation.

6.4 Payment of WagesThe employees will be paid fortnightly by electronic funds transfer.

6.5 Payroll DeductionsThe employer shall make deductions from wages for any purpose authorised by an employee whois covered by this agreement, so long as the deduction is one supported by the employer's normalpayroll deduction system and policy in place at any point in time. This may include authorisedpayroll deductions made to a union.

7. Hours of Work and Overtime

7.1 Hours of Work

Subject to the Standard Hours (Oil Companies) Award 1974 the ordinary working hours shall notexceed 70 per fortnight. The current maximum ordinary working hours in anyone day is 7 hoursand 47 minutes to be worked within the spread of hours of 7 a.m. and 7.30 p.m. The maximumordinary working hours in anyone day within the spread of hours may be changed subject to localagreement.

7.2 Flexibility of Hours, Breaks and ROO's

7.2.1 The employer may reschedule ordinary working hours of employees where it is agreedbetween the employer and the majority of the employees, rest periods and meal intervals may bestaggered or otherwise arranged at a time and in a manner to suit the convenience of theemployer in conjunction with the relevant provisions in this Collective Agreement. It is agreed thatemployees will be flexible in regards to this matter.

7.2.2 Subject to agreement between the employer and those individual employees affected ,when the employer wishes to reschedule a ROO;

- the employer will endeavour to provide reasonable notice to the employee(s).

- such ROO may be substituted by agreement.

- such agreement shall not unreasonably be withheld by either party .

- prior family or other social commitments are reasonable grounds for refusingto agree to rescheduling a ROO.

7.3 Overtime

7.3.1 Additional Hours I OvertimeAll time worked in excess of the work cycle's ordinary weekly or daily hours outs ide of the span ofordinary hours of work shall be paid as overtime at the following rates on a daily basis;

• Monday to Friday at the rate of time and a half for the first two hours and double timethereafter.

• All overtime worked after 10pm Monday to Friday inclusive shall be at the rate of doubletime.

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• All time worked prior to 12.00 noon on Saturdays shall be paid at the rate of time and a halffor the first two hours and double time thereafter.

• All time worked after 12.00 noon Saturday and all time worked on Sundays shall be paid atdouble time.

7.3.2 RecallAn employee recalled to work overtime after leaving the site on any day Monday to Friday(whether notified before or after leaving the site) shall be paid for a minimum of four hours work atthe appropriate rate for each time the employee is recalled.

Except in the case of unforeseen circumstances arising, the employees shall not be required towork the full four hours if the job the employee was recalled to perform is completed within ashorter period.

This overtime shall not be regarded as overtime for the purpose of clause 7.3.3 when the actualtime worked is less than four hours on the recall or on each of the recalls.

7.3.3 Rest PeriodAn employee who works overtime shall have at least a ten hour rest period between the end ofordinary hours on anyone day and start of ordinary hours on the next day.

If on the instructions of the employer, the employee resumes or continues work without having had10 consecutive hours off duty, the employee shall be paid double time until he or she is releasedfrom duty for a ten hour rest period. The employee shall then be entitled to be absent without lossof pay for ordinary working hours occurring during the ten hour rest period.

In the case of shift workers , eight hours shall be substituted for ten hours when overtime isworked:

(a) for the purpose of changing shift rosters; or(b) to provide coverage for a shift worker who has not reported for work ; or(c) where employees have mutually agreed to swap shifts

7.4 Meal Breaks and Rest PausesThere will be a meal break and a rest pause for each shift or day where a minimum of five hoursare worked Monday to Friday. The meal break shall be thirty minutes duration and will be unpaid.The rest pause will be twenty minutes duration and paid.

An employee required to work overtime on a Saturday or Sunday shall be allowed a 20 minutepaid crib break after five hours worked if the work is scheduled to continue after the break.Payment for the crib break shall be at the prevailing overtime rate. A second meal break of 20minutes shall be due if working 8 hours or more, and paid at the prevailing overtime rate.Subsequent paid meal breaks are due every 4 hours.

The times of taking the breaks will be as agreed between the employer and majority of employeesaffected.

7.5 Meal Allowance and Crib AllowanceIn the circumstances where an employee is required to work more than one hour's continuousovertime on work other than maintenance or two hours continuous maintenance after the ordinaryceasing time, Monday to Friday, a meal will be provided or a payment of $11.25 for meals will bemade. In addition the employee will be entitled to a paid crib break of 30 minutes prior to theovertime commencing or be paid 30 minutes at the overtime rate. The meal allowance and paidcrib break will also be provided for every 4 hours thereafter the first break.

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In the circumstances where an employee is required to work more than 4 hours overtime on eitherSaturday or Sunday, a meal will be provided or a payment of $11.25 in lieu will be made. The mealallowance and paid crib break will also be provided for every 4 hours thereafter the first break.

7.6 Continuous Shift Work(1) The provisions of Clause 5 subclause 4 of the Standard Hours (Oil Companies) Award 1974shall apply.

(2) All time worked in excess of or outside the ordinary working hours as prescribed , or on a shiftother than a rostered shift , shall be paid for at the rate of double time.

(3) That overtime rate shall not apply to excess time due to private arrangements between theworkers themselves or for the purpose of effecting the customary rotation of shifts , or which isowing to a relieving man not coming on at the appointed time. The time for which any worker maybe paid at ordinary rates instead of overtime due to a relieving man not coming on at the propertime , shall not exceed two (2) hours, after the expiration of which overtime rates shall apply for thewhole shift.

(4) All work performed on any of the holidays prescribed in Clause 11 - Public Holidays shall bepaid for at the rate of triple time.

(5) All weekend work performed dur ing the ordinary working hours shall be paid the following extrapercentages:

(a) Day shift Saturday - 60%

(b) Afternoon or night shift Saturday - 65%

(c) Day shift Sunday - 110%

(d) Afternoon or night shift Sunday -115%

(6) The rates prescribed in subclause (4) and (5) shall be paid in lieu of the shift allowanceprescribed in Clause 12 hereof.

7.7 Shift Work(1) Where any particular process is carried out on shifts other than day shift and less thanfive (5) consecutive afternoon shifts or night shifts are worked on that process then workersemployed on such afternoon or night shifts shall be paid at overtime rates.

(2) The loading on the ordinary rates of pay for regularly rostered alternating shifts shall be:

(a) Monday to Friday inclusive, afternoon and night shift - 15%

(b) Monday to Friday inclus ive, any other shift - 10%.

(3) The sequence of shift work shall not be deemed to be broken under the preceding subclause(1) by reason of the fact that the works are closed on a Saturday or Sunday or on any PublicHoliday.

(4) Where a shift commences at or after 11 pm then the whole shift shall be paid for at the ratewhich applies to the major portion of the shift.

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8. Conditions of Employment

8.1 Annual Leave

8.1.1 EntitlementA full time employee shall be entitled to be paid annual leave at the rate of 4 weeks of ordinarytime for each year of continuous employment. The period of annual leave shall be exclusive ofany public holiday that occurs during the period.

8.1.2 Rate of Pay for Annual LeaveAnnual leave shall be paid at the ordinary weekly wage rate for ordinary hours plus a loading of22.5%.

8.1.3 Calculation of Annual Leave PayAnnual leave shall be paid at the employee 's ordinary weekly wage rate for ordinary hours for theperiod of annual leave (excluding shift allowances and weekend payments)

8.1.4 Taking of Annual LeaveThe taking of annual leave will be subject to mutual agreement and at times convenient torequirements of the operations.

The employer by giving reasonable notice may require employees to take annual leave for anannual shutdown.

8.1.5 Payment on Termination

The employee on termination shall be paid pro-rata annual leave based on the period of service.

8.1.6 Additional Entitlement - Weekends and Public Holidays

For pay weeks in excess of five in which an employee works at the weekend or on a holidayprescribed in Clause 8.6 an employee, other than a continuous shift employee, shall have theperiod of his annual leave increased in accordance with the following;

For 6 to 9 weeks - 1 day

For 10 to 13 weeks - 2 days

For 14 to 17 weeks - 3 days

For 18 to 20 weeks - 4 days

Over 20 weeks - 5 days

Such additional annual leave shall be allowed and be taken continuously with the employee'sannual leave above prescribed. The calculation of the additional leave under this provision shallnot apply to weekends or holidays worked as a result of private arrangements of the employeesthemselves.

8.2 Sick Leave

8.2.1 EntitlementA weekly employee shall accrue paid sick leave at the rate of 10 days for each year of continuousemployment. Sick leave will be paid at the employee's ordinary rate of pay for ordinary hours for

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the period of sick leave.

Sick leave shall not apply for illnesses or injury covered by worker's compensation. An employeeshall not be entitled to be paid sick leave for more ordinary hours than the employee would haveworked on that day.

8.2.2 PaymentSick leave shall be paid at the employee 's ordinary weekly wage rate for ordinary hours and theemployee must meet the following requirements:

• Have a credit entitlement to a period of leave,• Notify the employer of the absence as soon as possible,• Advise the employer how long the absence on sick leave is likely to be,• Provide evidence satisfactory to the employer of the illness or injury. An employee

absent on sick leave for more than two consecutive days or on more than two singledays in any year may be required by the employer to produce a medical certificatefrom a qualified medical practitioner stating the nature of the illness and the periodthe employee will be unable to work. A Statutory Declaration may be provided by theemployee in the case where it has not been practical to provide a medical certificate.

8.2.3 Deduction from Sick Leave CreditsSick leave debits will be equivalent to the ordinary hours an employee would have worked hadthey not been on sick leave.

8.2.4 Sick Leave CumulativeSick leave shall accumulate from year to year.

8.2.5 Continuity of EmploymentContinu ity of employment for sick leave accumulation is not broken by absence from work onleave granted by the employer; or the termination or standing down of the employee for any periodnot exceeding 3 months, provided that the employee is re-employed by the employer. But suchperiod of absence or stand down will not count as service.

8.2.6 Carers LeaveAn employee may use up to 10 days accrued sick days as carers leave to tend to the care formembers of the employee's immediate household. The leave will be subject to the employeeproviding reasonable proof of the need for the use of carer's leave. In circumstances where theemployee has exhausted all of the paid leave, a further 2 days unpaid leave may be taken .

8.3 Parental LeaveEmployees will be entitled to Parental Leave in accordance with the Fair Work Act 2009 (Cth).

8.4 Compassionate LeaveA full time employee may take compassionate leave when a member of the employee's immediatefamily or household member: contracts or develops a personal injury or illness that poses aserious threat to their life; or dies. Compassionate leave shall be a maximum of 3 paid days peroccasion.

The following are members of an employee's immediate family:(a) a spouse, child, parent, grandparent, grandchild or sibling of the employee; or(b) a child, parent, grandparent, grandchild or sibling of a spouse of the employee.

8.5 Long Service LeaveAll employees will be entitled to Long Service Leave consistent with the terms of the Long ServiceLeave (Oil Companies) Award 1985. Long Service Leave may, subject to the employer'sapproval, be taken in various lengths of time within the employee's Long Service Leave

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entitlement. The employer may reasonably take into account any significant impact that therequested Long Service Leave would have on the terminal operations when considering therequest.

8.6 Public HolidaysAll full time employees shall be entitled to the following Public Holidays without loss of pay;

• Christmas Day,• Boxing Day,• New Years Day,• Australia Day,• Good Friday,• Easter Saturday,• Easter Monday,• Anzac Day,• Labour Day,• Foundation Day,• Queens Birthday,• A public holiday prescribed by legislation for the district and/or state that the employee

is working in (eg Show Day).

Any employee required to work on a public holiday nominated herein shall be paid at the rate oftriple time for all time so worked . Triple time means double time in addition to the employee'sordinary time rate of payor pro rata if there is more or less than a day.

9. Dispute Resolution ProcedureThe parties to this Agreement shall observe the following Industrial Dispute Resolution procedure :

A procedure for the avoidance and/or resolution of disputes will apply in the enterprise covered bythis Agreement. The mechanism and procedures for resolving disputes will include, but not belimited to, the following:

1. The employee concerned will first meet and confer with their immediate supervisor. Theemployee may appoint another person to act on their behalf.

2. If the matter is not resolved at such a meeting the parties will arrange further discussionsinvolving more senior management as appropriate. The employee may invite arepresentative to be involved in the discussions. The employer may also invite arepresentative into the discussions.

3. If the matter remains unresolved , the employer or employee may refer it to a more seniorlevel of management for consideration.

4. In the event of the matter remaining unresolved, either party may refer the matter to FairWork Australia for resolution. Any determination/ resolution/outcome by Fair WorkAustralia cannot be inconsistent with the National Code of Pract ice for the ConstructionIndustry and the Australian Government Industry Guidelines for the National Code ofPractice for the Construction Industry or inconsistent with legislative obligations.

5. Except in situations where there is a perceived immediate and significant threat toemployee health and safety, work will continue and considerat ion of the needs of thebusiness will remain a priority .

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SIGNATURE PROVISIONS

Name: GE.f2j<1LO Hu t:5 N

Address 3bo ELi 21~I3E:TH S "2. -ETME.LC3oUI~NE .scc

Date: .;;5 I,I Jaooe,

Witness: ,~<",-.-u;. /3 c e.Name of Witness (print) 5uZ1<=l ,u,..j£ j3i 2Cl~

Address 36,0 t~LJ',2V-H31=n-I Sn7..E"ETn E.t-CCU \'2 "-J r::: 3 00 <:)

Date: 5 i /I L "J..() - 7

Signed for and on behalf ofThe Communications, Ele trical, Electronic, Energy, Information, Postal, Plumbing andAllied Services Union of ustralia

Name:~~aS " ~fC/~

Address ·:1/z~7 ,,~ "- CA i!A tC

Date: /~ //1 / {J _

. ' ~/

Witness: ~ _/~ /}

Name nfWitness (print): . ,,*,... /).41 ,Ic..:...: v ~Addres~_,Jl.// '2..J I r.~l...v ,-;-.4 A /~ c... r1 11/1 bv'2 /Date / . /il!,; 7

,

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Schedule 1

Consultation term

(1) This term applies if:

(a) the employer has made a definite decision to introduce a major change to production,program, organization, structure, or technology in relation to its enterprise; and

(b) the change is likely to have a significant effect on employees of the enterprise.

(2) The employer must notify the relevant employees of the decision to introduce the majorchange.

(3) The relevant employees may appoint a representative for the purposes of the procedures inthis term.

(4) If:

(a) a relevant employee appoints, or relevant employees appoint, a representative for thepurposes of consultation; and

(b) the employee or employees advise the employer of the identity of the representative;

the employer must recognise the representative.

(5) As soon as practicable after making its decision , the employer must:

(a) discuss with the relevant employees:

(i) the introduction of the change; and

(ii) the effect the change is likely to have on the employees; and

(iii) measures the employer is taking to avert or mitigate the adverseeffect of the change on the employees; and

(b) for the purposes of the discussion -- provide, in writing, to the relevant employees:

(i) all relevant information about the change including the nature of thechange proposed; and

(ii) information about the expected effects of the change on theemployees; and

(iii) any other matters likely to affect the employees.

(6) However, the employer is not required to disclose confidential or commercially sensitiveinformation to the relevant employees.

(7) The employer must give prompt and genuine consideration to matters raised about the majorchange by the relevant employees.

(8) If a term in the enterprise agreement provides for a major change to production, program,organisation, structure or technology in relation to the enterprise of the employer, the requirementsset out in sub clauses (2), (3) and (5) are taken not to apply.

(9) In this term, a major change is likely to have a significant effect on employees if it resultsin:

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a. the termination of the employment of employees; or

b. major change to the composition , operation or size of the employer's workforce orto the skills required of employees; or

c. the elimination or diminution of job opportunities (including opportunities forpromotion or tenure); or

d. the alteration of hours of work; or

e. the need to retrain employees; or

f. the need to relocate employees to another workplace ; or

g. the restructuring of jobs.

(10) In this term, relevant employees mean the employees who may be affected by the majorchange.

Schedule 2

Flexibility Term

(1) An employer and employee covered by this enterprise agreement may agree to make anindividual flexibility arrangement to vary the effect of terms of the agreement if:

(a) the agreement deals with 1 or more of the following matters:

(i) arrangements about when work is performed;

(ii) overtime rates;

(iii) penalty rates;

(iv) allowances;

(v) leave loading; and

(b) the arrangement meets the genuine needs of the employer and employee in relationto 1 or more of the matters mentioned in paragraph (a); and

(c) the arrangement is genuinely agreed to by the employer and employee.

(2) The employer must ensure that the terms of the individual flexibility arrangement:

(a) are about permitted matters under section 172 of the Fair Work Act 2009 ; and

(b) are not unlawful terms under section 194 of the Fair Work Act 2009 ; and

(c) result in the employee being better off overall than the employee would be if noarrangement was made.

(3) The employer must ensure that the individual flexibility arrangement:

(b) is in writing; and

(c) includes the name of the employer and employee; and

(d) is signed by the employer and employee and if the employee is under 18 years ofage , signed by a parent or guardian of the employee; and

(e) includes details of:

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(i) the terms of the enterprise agreement that will be varied by thearrangement; and

(ii) how the arrangement will vary the effect of the terms; and

(iii) how the employee will be better off overall in relation to the terms andconditions of his or her employment as a result of the arrangement;and

(e) states the day on which the arrangement commences.

(4) The employer must give the employee a copy of the individual flexibility arrangement within14 days after it is agreed to.

(5) The employer or employee may terminate the individual flexibility arrangement:

(a) by giving no more than 28 days written notice to the other party to the arrangement;or

(b) if the employer and employee agree in writing at any time.

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