[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;

“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

Printed by authority of the Commonwealth Government Printer

Boom Logistics Limited applied for the termination of the Esso Offshore Crane Maintenance Enterprise Agreement 2009-2012, which governed the employment conditions of crane operators on Esso's facilities. The Fair Work Commission, which was hearing the application, needed to determine whether the agreement could be terminated, given that the parties had been engaged in negotiations for a new agreement since the existing one had expired. The Commission was required to consider whether the process of negotiating a new agreement was likely to be completed in a timely manner and whether the existing agreement should be terminated.

The Commission examined the history of negotiations between the parties, the progress made towards a new agreement, and the reasons for any delays. It also considered the impact of terminating the existing agreement on the employees and the potential for industrial action. The Commission found that the parties had made significant progress in negotiations and that the process was likely to be completed in a timely manner. The Commission also found that terminating the existing agreement would have a significant impact on the employees and would not be in the best interests of the parties.

Accordingly, the Commission decided not to terminate the existing agreement. The Commission ordered that the parties continue negotiations in good faith with a view to reaching a new agreement as soon as possible. The Commission also ordered that the parties provide regular updates on the progress of negotiations to the Commission.

No further orders were made by the Commission.

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