Boom Logistics Ltd

[2015] FWCA 6144

[2015] FWCA 6144

The attached document replaces the Decision previously issued on 3 September 2015 with the reference [2015] FWC 6085 in its entirety.

Replacement is due to a reference error

Rachel Kimber

Associate to Deputy President Gostencnik

Dated: 4 September 2015

[2015] FWCA 6144

FAIR WORK COMMISSION

DECISION

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

Boom Logistics Ltd
(AG2015/490)

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 3 SEPTEMBER 2015

Application for termination of the Boom Logistics Ltd Esso offshore Crane Maintenance Enterprise Agreement 2009-2012.

[1] On 9 March 2015 Boom Logistics Ltd (the employer) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the Boom Logistics Ltd Esso offshore Crane Maintenance Enterprise Agreement 2009-2012 (the Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date was 31 March 2012.

[3] The relevant provisions of the Act are as follows:

“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;

(c) an employee organisation covered by the agreement.”

“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.”

“227 When termination comes into operation

If an enterprise agreement is terminated under s.226, the termination operates from the day specified in the decision to terminate the agreement.”

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is an organisation which is covered by the Agreement. Correspondence was received from the AMWU on 3 September 2015 advising that they did not oppose the termination of the Agreement.

[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) of the Act, 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 Ltd. 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 3 September 2015.

DEPUTY PRESIDENT

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