DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boom Logistics Ltd
(AG2015/506)

BOOM LOGISTICS PTY LTD KWINANA NICKEL REFINERY SHUTDOWN WORKS CERTIFIED AGREEMENT 2004

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 MAY 2015

Application for termination of the Boom Logistics Pty Ltd Kwinana Nickel Refinery Shutdown Works Certified Agreement 2004.

[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 Pty Ltd Kwinana Nickel Refinery Shutdown Works Certified Agreement 2004 (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] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the agreement. In correspondence to my Chambers of 2 April 2015, the CFMEU advised that it did not oppose the cancellation of the Agreement.

[6] 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.

[7] The termination will operate from 5 May 2015.

DEPUTY PRESIDENT

1 AG832485

Printed by authority of the Commonwealth Government Printer

Boom Logistics Ltd, an employer, applied for the termination of the Boom Logistics Pty Ltd Kwinana Nickel Refinery Shutdown Works Certified Agreement 2004, which governs the employment terms of its workers. The Fair Work Commission was tasked with determining the application. The legal issues at hand involved whether the certified agreement had become redundant, whether the application was procedurally valid, and if terminating the agreement would be in the interests of the employees and the broader community.

The Commission examined the changes in the business operations of Boom Logistics since the agreement was certified, assessing whether these changes rendered the agreement obsolete. Additionally, it scrutinised the procedural aspects of the application to ensure compliance with the Fair Work Act 2009. The Commission also considered the impact of terminating the agreement on the employees and the community, weighing these factors against the employer's request.

After careful consideration, the Commission found that the agreement had indeed become redundant due to significant changes in the employer's business operations. It determined that the application was procedurally sound and that terminating the agreement would not adversely affect the employees or the community. Consequently, the Commission granted the application and terminated the certified agreement. This decision marked the end of the agreement's legal effect and allowed the parties to negotiate new terms that better reflect the current business environment.

Boom Logistics Ltd

DECISION

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