Document ID: chunk:federal_register_of_legislation:F2021L01011:reg:20:p2
Version: federal_register_of_legislation:F2021L01011
Segment Type: reg
Provision Reference: reg 20 (pt 2/3)
Character Range: 27687–30523

change
 (4) Repayment under subsection 50(1) of the Act does not apply if the Minister is satisfied that:
 (a) a material adverse change has occurred; and
 (b) if the material adverse change is covered by paragraph (5)(a), (b) or (d)—the refinery operator has taken appropriate steps, before and after the change, which a prudent, experienced and reasonable person in the circumstances of the refinery operator would have taken to mitigate or otherwise address the consequences of the situation; and
 (c) related refinery entities have not unreasonably stopped, or impeded the ability for, the refinery operator taking appropriate steps under paragraph (b); and
 (d) relevant independent analysis is provided by the person subject to the repayment to the Minister to evidence:
 (i) paragraph (4)(a); and
 (ii) if paragraphs (4)(b) or (5)(a), (b), (c) or (f) apply—those paragraphs.
 (5) For paragraph (4)(a), a material adverse change is one of the following circumstances:
 (a) the refinery has operated continuously below a quarterly margin of 4.6 cents per litre (not taking into account fuel security services payments) for at least 9 months before a decision to close the refinery;
 (b) the refinery operations have recorded losses of at least $60 million in a continuous period of 9 months or less prior to a decision to close the refinery;
Note: The occurrence of losses would take into account fuel security services payments and other support for the refinery, such as financial support provided by the Commonwealth government.
 (c) a regulatory change event;
 (d) the refinery and its employees have failed to make an enterprise agreement within the meaning of the Fair Work Act 2009 in circumstances where:
 (i) the refinery (including its bargaining representatives) have met the good faith bargaining requirements in the Fair Work Act 2009; and
 (ii) all dispute resolution processes under the Fair Work Act 2009 have been exhausted in an attempt to make the enterprise agreement; and
 (iii) the decision to close the refinery is directly related to the failure to make an enterprise agreement;
 (e) an amendment to the Act or this instrument that has the effect that fuel security services payments are no longer available to the refinery for the remainder of its commitment period;
 (f) the Act or this instrument was amended to materially reduce the payments under Part 3 of the Act in respect of the refinery over the remainder of its commitment period in the 180 days before a decision to close the refinery.
Regulatory change event
 (6) For paragraph (5)(c), a regulatory change event occurs if:
 (a) there is a change to Commonwealth, State, Territory or local government regulatory settings (including relevant laws, subordinate legislation or regulatory approvals) that materially increases costs for the refinery;