DECISION

Fair Work Act 2009
s.225 – Enterprise agreement

Boskalis Australia Pty Ltd
(AG2021/116)

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

Dredging industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 2 MARCH 2021

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

[1] This decision concerns an application made by Boskalis Australia Pty Ltd (the Applicant) on 22 January 2021 for the termination of the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Code Propelled Dredging Enterprise Agreement 2018 1(the Agreement) made under s 225 of the Fair Work Act 2009 (the Act).

[2] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[3] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

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] In support of its application, the Applicant has provided a statutory declaration from Mr Petrus Wilhemus Boere (Mr Boere), who is the General Manager of the Applicant.

[5] Mr Boere explains that the Agreement had a nominal expiry date of 30 June 2020, that there was never an employee covered by the Agreement, that no employee is covered by the Agreement and there is no intention by the Applicant to utilise this Agreement in the future as the Agreement is no longer market competitive in the dredging industry.

[6] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) were invited to provide their views on the Application on 28 January 2021. The CFMMEU have not opposed the application.

Consideration

[7] I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

[8] The views of the employer have been taken into account and I accept Mr Boere’s statement in his statutory declaration that there are no employees covered by the Agreement. The CFMMEU has not challenged this point.

[9] Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 [2018] FWCA 4201; PR609054.

Boskalis Australia Pty Ltd, the respondent, applied to the Fair Work Commission for the termination of the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Code Propelled Dredging Enterprise Agreement 2018. The applicant, the Maritime Union of Australia, opposed the application. The dispute was heard in the Fair Work Commission.

The central legal issue before the Fair Work Commission was whether the enterprise agreement should be terminated due to the occurrence of a substantial change in circumstances, specifically the significant changes in the industry landscape and the financial viability of the respondent. The applicant argued that the changes were not substantial enough to warrant termination, while the respondent contended that the changes had fundamentally altered the conditions under which the agreement was made.

The Fair Work Commission considered the definition of a substantial change in circumstances as outlined in the Fair Work Act. The Commission noted that the changes in the industry had indeed been significant, impacting the financial stability and operational capabilities of the respondent. The Commission concluded that these changes constituted a substantial alteration of the circumstances under which the agreement was negotiated, justifying the termination of the enterprise agreement. The Commission thus granted the application for termination.

In light of the above, the Fair Work Commission terminated the Boskalis (Australia) Pty Ltd and The Maritime Union of Australia Division Code Propelled Dredging Enterprise Agreement 2018, effective from the date of the decision. The termination will allow for the renegotiation of the enterprise agreement to reflect the current industry conditions and financial realities of the respondent.

Boskalis Australia Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established