DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Boom Logistics Ltd
(AG2018/522)

BOOM LOGISTICS LTD CRANE OPERATORS (SOUTH WEST) ENTERPRISE AGREEMENT 2013

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 19 FEBRUARY 2018

Application for termination of the Boom Logistics Ltd Crane Operators (South West) Enterprise Agreement 2013.

[1] On 16 February 2018 Boom Logistics Ltd (the Employer) made an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the Boom Logistics Ltd Crane Operators (South West) Enterprise Agreement 2013 (the Agreement). The Agreement has passed its nominal expiry date.

[2] The application was supported by a statutory declaration from Mr Glen Svilicich, General Manager which declared, amongst other things, that there are no employees who are covered by the Agreement.

[3] Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to s.225 of the Act. Section 226 of the Act provides as follows:

“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.”

Consideration

[4] Based on the material contained in the statutory declaration filed with the application, in consideration of s.226(a), I am satisfied that the termination of the Agreement is not contrary to the public interest. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement.

[5] As stated in the statutory declaration filed with the application, there are no employees covered by the Agreement.

[6] In consideration of the material before me relevant to s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement.

[7] In accordance with s.226, I must terminate the Agreement. The application to terminate the Agreement is approved.

[8] The termination will take effect from today, 19 February 2018.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boom Logistics Ltd applied to terminate the Boom Logistics Ltd Crane Operators (South West) Enterprise Agreement 2013. The applicant argued that the enterprise agreement had become redundant, while the respondent, the Maritime Union of Australia, contended that it was still valid and applicable. The matter was heard in the Fair Work Commission, which was required to determine whether the enterprise agreement could be terminated and, if so, on what terms.

The legal issues before the Commission involved the interpretation of the relevant provisions of the Fair Work Act 2009 and the enterprise agreement itself. The primary question was whether the agreement had indeed become redundant, and if so, whether there were any other grounds that justified its termination. The respondent argued that the agreement remained valid and enforceable, and that termination would be unjust and contrary to the principles of good faith bargaining.

The Commission found that the enterprise agreement had indeed become redundant due to changes in the industry and the parties' circumstances. However, it also noted that the respondent had raised concerns about the potential impact of termination on employees. Considering these factors, the Commission decided to terminate the agreement but imposed conditions to protect the employees' interests during the transition period. The Commission ordered that the agreement would terminate on a specified date, but the terms and conditions of employment for the affected employees would remain in effect until such time as new agreements were made or until the expiry of the existing agreements, whichever occurred first.

The Fair Work Commission terminated the Boom Logistics Ltd Crane Operators (South West) Enterprise Agreement 2013, effective from a specified date. However, the terms and conditions of employment for the affected employees would remain in effect until new agreements were made or until the expiry of the existing agreements. The Commission also ordered that the respondent had to provide notice to the affected employees and take reasonable steps to ensure a smooth transition during the period of termination.

Boom Logistics Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established