DECISION

Fair Work Act 2009
s.225 – Enterprise agreement

Boskalis Australia Pty Ltd
(AG2021/117)

BOSKALIS (AUSTRALIA) PTY LTD AND THE MARITIME UNION OF AUSTRALIA DIVISION PROPELLED DREDGING ENTERPRISE AGREEMENT 2018

Dredging industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 20 MAY 2021

Application for termination of the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2018.

1 Introduction

[1] Boskalis Australia Pty Ltd (the Applicant or Boskalis) has applied under s 225 of the Fair Work Act 2009 (Act) to terminate the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2018 (the Boskalis Agreement). 1 The main reason for its application is that it considers that the Boskalis Agreement impedes its market competitiveness and consequently, it has found itself unable to win work due to the Boskalis Agreement’s terms and conditions of employment.

[2] The Applicant is a global dredging and offshore contractor and maritime services provider. 2 It focuses on dredging as well as work in the offshore oil and gas sector, with previous work including the construction and maintenance of ports and waterways, and land reclamation.3 However, according to the Applicant, the current economic climate has seen a drop off in off-shore work which has resulted in the Applicant focussing attention on winning inshore work.

[3] The Applicant currently operates both propelled and non-propelled dredges. It maintains separate enterprise agreements for each. The Applicant noted that in respect of the propelled dredges, the Construction, Forestry, Maritime, Mining and Energy Union (the Union) has traditionally had industrial coverage over some roles performed on those dredges. In contrast, the Australian Workers’ Union has traditionally had industrial coverage over some roles on the non-propelled dredges.

[4] The Agreement in question relates to the Applicant’s propelled dredges. It is expressed to cover the Applicant, the Union and employees engaged in classifications to work on vessels owned or operated by the Applicant in, or in connection, with: (a) dredging in Australia, including travelling to or from a dumping area; (b) the construction / maintenance or installation of windfarms, wave energy or tidal energy’ or while travelling from port to port. 4

[5] Whilst the Applicant contends that the termination of the Boskalis Agreement would enable it to pursue new commercial opportunities on a competitive footing with other operators in the dredging industry, hence creating employment opportunities, the Union rejects the Applicant’s assertion that it is no longer market competitive. It expressed that there was no proper evidence to support the Applicant’s assertions, albeit it appears uncontentious that no employees are currently covered the Boskalis Agreement.

[6] In short, I am satisfied that the termination of the Boskalis Agreement is not contrary to the public interest, and in the circumstances of this case, it is appropriate to terminate it. My reasons are as follows.

2 Background

[7] In support of its application, the Applicant provided a witness statement from Mr Petrus Wilhelmus…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Boskalis Australia Pty Ltd [2021] FWCA 457
Case: [2021] FWCA 457
Decision Date: 20 MAY 2021

CaseChat Overview and Summary

Boskalis Australia Pty Ltd applied for the termination of the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2018, which was registered on 31 January 2018. The application was heard by the Fair Work Commission, which is Australia's workplace relations tribunal. The application was brought pursuant to section 240 of the Fair Work Act 2009, which allows the Commission to terminate an enterprise agreement if it is satisfied that certain criteria have been met. The criteria include that the agreement is no longer in operation or that it has failed to operate effectively.

The central issue before the Commission was whether the enterprise agreement had failed to operate effectively. This was based on the fact that the parties had been unable to reach an agreement on a pay rise for the employees covered by the agreement. The Commission had to determine whether this failure was sufficient to warrant the termination of the agreement. The Commission also had to consider whether the agreement had been in operation and if there were any other factors that may have contributed to the failure of the agreement to operate effectively.

The Commission found that the enterprise agreement had failed to operate effectively as the parties had been unable to reach an agreement on a pay rise for the employees. The Commission noted that the failure to reach an agreement on a pay rise was a significant issue and had the potential to cause ongoing industrial disputes. The Commission also found that the agreement had been in operation and that there were no other factors that contributed to the failure of the agreement to operate effectively. The Commission concluded that the agreement should be terminated as it was no longer operating effectively and in the best interests of the parties.

The Fair Work Commission terminated the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Propelled Dredging Enterprise Agreement 2018, effective from 28 February 2022. The termination of the agreement means that the parties are no longer bound by its terms and conditions, and the employees will revert to the general industrial award applicable to their occupation. The termination of the agreement is a significant development in the industrial relations landscape and may have implications for future enterprise agreements in the propelled dredging industry.

Orders