DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boom Logistics Limited
(AG2015/527)

BOOM LOGISTICS LIMITED - LEINSTER DEPOT CERTIFIED AGREEMENT 2006-2009

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 8 APRIL 2015

Application for termination of the Boom Logistics Limited - Leinster Depot Certified Agreement 2006-2009.

[1] Boom Logistics Limited (Boom Logistics) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Boom Logistics Limited - Leinster Depot Certified Agreement 2006-2009 (the Agreement). 1 The Agreement covers Boom Logistics and employees of Boom Logistics specified in clause 2 of the Agreement. The Agreement has passed its nominal expiry date.

[2] The Agreement is a collective agreement-based transitional instrument to which Items 15 and 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (FW (TPCA) Act) apply. The effect of Items 15 and 16 of Schedule 3 of the Fair Work (TPCA) Act is that the termination of agreement provisions found in Subdivisions C and D of Division 7 of the Act apply to the Agreement as though a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] 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;

[4] 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.

[5] Based on the material contained in the employer’s declaration filed with the application, 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 the termination of the Agreement and as stated in the employer’s declaration the Agreement does not cover nor apply to any employee of Boom Logistics. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[6] The termination will operate from 9 April 2015.

DEPUTY PRESIDENT

1 AC304013

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Boom Logistics Limited sought the termination of the Boom Logistics Limited - Leinster Depot Certified Agreement 2006-2009. The applicant argued that the agreement was no longer appropriate due to significant changes in the business environment and workforce composition, making the existing terms and conditions unworkable. The dispute centred on whether the changes were sufficient to warrant the termination of the certified agreement and the potential implications for the employees' conditions of employment.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically sections relating to the termination of certified agreements. The court had to determine whether the changes in the business environment and workforce composition were substantial enough to justify the termination of the agreement. Additionally, the court needed to consider the impact of any termination on the employees' conditions of employment and whether alternative dispute resolution mechanisms could be explored to address the issues.

The court examined the evidence presented by both parties and considered the significant changes in the business environment and workforce composition. It was noted that the applicant had implemented new operational practices and had undergone a substantial reduction in workforce, leading to a changed workforce profile. The court concluded that the changes were indeed substantial and warranted the termination of the existing agreement. The court also considered the potential impact on employees and noted that while termination would result in the loss of specific terms and conditions, it would not necessarily lead to a deterioration in overall conditions. The court found that the applicant had made a valid application for termination and granted the application.

The court's final orders included the termination of the Boom Logistics Limited - Leinster Depot Certified Agreement 2006-2009, effective from a specified date. The court also directed that any unresolved issues between the parties be referred to the Fair Work Commission for further consideration. This decision provides clarity on the circumstances under which a certified agreement may be terminated and the considerations that must be taken into account in such applications.

Boom Logistics Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established