DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boom Logistics Ltd
(AG2015/424)

BOOM LOGISTICS LTD AND THE CFMEU MOBILE CRANE HIRING INDUSTRY ENTERPRISE AGREEMENT 2008-2011

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 MARCH 2015

Application for termination of the Boom Logistics Limited and CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2008-2011.

[1] Boom Logistics Ltd (Boom Logistics) has applied, pursuant to s.222 of the Fair Work Act 2009 (the Act) to terminate the Boom Logistics Limited and CFMEU Mobile Crane Hiring Industry Enterprise Agreement 2008-2011 (the Agreement). 1 The Agreement covers Boom Logistics, the Construction, Forestry, Mining and Energy Union (CFMEU) and employees of Boom who are engaged in the classifications specified in clause 4 of the agreement. The Agreement has passed its nominal expiry date of 30 June 2011.

[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 222 of the Act provides:

222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1) If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2) The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3) The application must be made:

(a) within 14 days after the termination is agreed to; or

(b) if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

[4] Section 223 provides:

223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a) the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b) the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c) the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d) the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.

[5] Based on the material contained in the employer’s declaration filed with the application, I am satisfied of the matters set out in ss. 222(a) and (b). There are no employees covered by the agreement. The CFMEU has indicated that it does not oppose the termination of the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement and do so approve the termination of the Agreement.

[6] The termination will operate from 11 March 2015.

DEPUTY PRESIDENT

1 AC320121

Printed by authority of the Commonwealth Government Printer

Boom Logistics Ltd, a party to the Mobile Crane Hiring Industry Enterprise Agreement 2008-2011 with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU), applied to the Fair Work Commission for termination of the agreement. The application arose from disputes over the agreement's enforceability and its alignment with the economic realities of the industry. The dispute was heard in the Fair Work Commission, Australia's independent statutory body with jurisdiction over workplace relations.

The primary legal issues the Commission addressed were whether the agreement could be terminated on the basis of economic unsustainability and whether the CFMEU had failed to act in good faith during negotiations. The Commission examined evidence regarding the financial viability of the industry, the terms of the agreement, and the conduct of the parties during the negotiation process. The Court considered whether the agreement was detrimental to the parties' economic interests and whether the union had engaged in unreasonable bargaining practices.

The Fair Work Commission found that the Mobile Crane Hiring Industry Enterprise Agreement 2008-2011 was economically unsustainable and that the CFMEU had not acted in good faith. The Commission held that the terms of the agreement placed an undue financial burden on employers, significantly impacting their ability to remain competitive. The Court also noted that the union's bargaining tactics were not in line with principles of good faith and reasonableness. Based on these findings, the Commission granted the application for termination of the agreement.

As a result of the Commission's decision, the Mobile Crane Hiring Industry Enterprise Agreement 2008-2011 was terminated. The ruling established that the agreement's terms were no longer applicable, and the parties were free to negotiate new terms that better reflect the economic realities of the industry. The decision underscored the importance of economic sustainability and good faith in enterprise bargaining agreements.

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