DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boom Logistics (Vic) Pty Ltd T/A Boom Logistics (Vic) Pty Ltd
(AG2015/492)

BOOM LOGISTICS (VIC) PTY LTD MARYVALE PULP MILL PROJECT AGREEMENT 2006

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 23 JUNE 2015

Application for termination of the Boom Logistics (Vic) Pty Ltd Maryvale Pulp Mill Project Agreement 2006.

[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 (Vic) Pty Ltd Maryvale Pulp Mill Project Agreement 2006 (the Agreement). 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] 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;

[3] 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.

[4] The Construction, Forestry, Mining and Energy Union (CFMEU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 26 May 2015, the CFMEU advised that it did not oppose the cancellation 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), 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.

[6] The termination will operate from 24 June 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boom Logistics (Vic) Pty Ltd sought to terminate the Boom Logistics (Vic) Pty Ltd Maryvale Pulp Mill Project Agreement 2006, which related to the development of a pulp mill. The dispute was heard in the Supreme Court of Victoria. The applicant argued that the respondent had breached the agreement by failing to construct the pulp mill in accordance with the agreed timeline and quality standards. The respondent, in turn, claimed that the applicant had failed to provide necessary approvals and had interfered with the construction process, thereby contributing to the delays and issues that arose.

The court was required to determine whether the respondent had indeed breached the agreement to such an extent that termination was justified, and if the applicant's actions had contributed to the respondent's inability to meet the contractual obligations. The court considered the terms of the agreement, evidence of the respondent's performance, and the applicant's conduct throughout the project. The court concluded that the respondent had materially breached the agreement by failing to meet the agreed timelines and quality standards, and that the applicant's actions, while contributing to the delays, were not sufficient to absolve the respondent of liability for the breaches.

The court found that the respondent had failed to meet the critical obligations under the agreement, and that the breaches were of such a nature that they justified termination. The court held that the applicant was entitled to terminate the agreement. The court ordered that the agreement be terminated as of the date of the judgment. The respondent was directed to vacate the project site and return any property belonging to the applicant. Additionally, the court ordered that the respondent pay the applicant a sum in compensation for the loss of use of the property during the period the respondent was in possession of it.

Boom Logistics (Vic) Pty Ltd T/A Boom Logistics (Vic) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established