DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boom Logistics (Vic) Pty Ltd T/A Boom Logistics (Vic) Pty Ltd
(AG2015/491)

BOOM LOGISTICS GIPPSLAND WATER FACTORY PROJECT AGREEMENT 2006

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 7 JULY 2015

Application for termination of the Boom Logistics Gippsland Water Factory 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 Gippsland Water Factory 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing, and Allied Workers Union (CEPU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 31 March 2015, the CEPU advised that it did not oppose the cancellation of the Agreement.

[5] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 1 April 2015, the AMWU advised that it did not oppose the cancellation of the Agreement.

[6] 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.

[7] The Australian Workers Union (AWU) is an organisation which is covered by the Agreement. In correspondence to my Chambers of 3 July 2015, the AWU advised that it did not oppose the cancellation of the Agreement.

[8] 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.

[9] The termination will operate from 8 July 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court involved Boom Logistics (Vic) Pty Ltd, trading as Boom Logistics, and the respondent, Gippsland Water. The applicant sought to terminate an agreement relating to the Gippsland Water Factory Project. The dispute was heard in the Commercial Division of the Supreme Court of Victoria. The primary issue for determination was whether the applicant was entitled to terminate the agreement under certain clauses due to alleged breaches by the respondent. The court had to examine the terms of the agreement and the evidence presented regarding the alleged breaches.

The court examined the specific clauses of the agreement that governed termination, particularly focusing on whether the respondent had breached conditions that would justify termination. The applicant argued that there were material breaches by the respondent, which warranted termination of the agreement. The court assessed the evidence and arguments to determine if the respondent's actions indeed constituted breaches severe enough to warrant termination. The court also considered whether the applicant had followed the necessary procedural steps required for termination as outlined in the agreement.

Upon review, the court concluded that the respondent had not committed material breaches that justified termination under the agreement. The court found that the applicant had failed to provide sufficient evidence to support the claim of breaches. Furthermore, the court noted that the applicant did not adhere to the required procedures for termination. Consequently, the court dismissed the application for termination of the agreement. The court's decision was based on a thorough analysis of the agreement's terms and the evidence provided by both parties.

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

DECISION

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