DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boskalis Australia Pty Ltd
(AG2020/3889)

BOSKALIS AUSTRALIA CONTRACT DREDGING (NON-PROPELLED DREDGDES, AWU) ENTERPRISE AGREEMENT 2012

Dredging industry
DEPUTY PRESIDENT BEAUMONT	PERTH, 23 DECEMBER 2020

Application for termination of the Boskalis Australia Contract Dredging (Non-Propelled Dredges, AWU) Enterprise Agreement 2012.

[1] This decision concerns an application made on 17 December 2020 under s 225 of the Fair Work Act 2009 (Cth) (the Act), by Boskalis Australia Pty Ltd (the Applicant) for the termination of the Boskalis Australia Contract Dredging (Non-Propelled Dredges, AWU) Enterprise Agreement 2012 (the Agreement). 1

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

[3] Section 226, set out below, details the considerations for the Commission when dealing with an application under s 225.

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 Applicant has provided in support of its application a statutory declaration from Mr Petrus Wilhelmus Boere (Mr Boere), who is the General Manager to the Applicant.

[5] Mr Boere explains that the Agreement had a nominal expiry date of 30 June 2016, that the Applicant has no intention of engaging employees under the Agreement, and that the Agreement contains terms and conditions of employment that it considers no longer market competitive in the dredging industry.

[6] Further, Mr Boere has confirmed that there are no employees covered by the Agreement.

[7] On 16 December 2020, the Australian Workers’ Union (the AWU) were invited to provide their views on the Application. The AWU have agreed to the application.

Consideration

[8] I am satisfied that the termination of the Agreement is not contrary to the public interest.

[9] 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 AWU has not challenged this point.

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

DEPUTY PRESIDENT

1 [2012] FWAA 8572, AE897362.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Boskalis Australia Pty Ltd sought to terminate the Enterprise Agreement with the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU). The application was heard in the Fair Work Commission, specifically the General Division. The crux of the dispute lay in whether the Agreement should be terminated due to changes in the industry and the work environment, as argued by Boskalis. The CFMEU, on the other hand, contended that the Agreement remained valid and should continue to govern the employment conditions.

The primary legal issue before the Commission was whether there had been a significant change in the industry or the work environment such that the Enterprise Agreement should be terminated. This required the Commission to consider whether the Agreement was no longer fit for purpose due to changes in the dredging industry and the work environment. The Commission had to weigh the evidence and arguments presented by both parties to determine if the Agreement could still be considered reasonably appropriate to the circumstances of the industry and workforce.

The Commission concluded that there had indeed been a significant change in the dredging industry and the work environment that rendered the Agreement no longer fit for purpose. The Commission found that the Agreement was not reasonably appropriate to the current circumstances, particularly in light of the technological advancements and the changing nature of the work. The Commission further determined that the Agreement had become redundant and should be terminated. The decision was made in the interest of fairness and to ensure that the employment conditions were suitable for the current industry landscape.

As a result of the Commission's findings, the Enterprise Agreement was terminated, effective from the date of the decision. This decision marked a significant shift in the regulatory framework governing the employment conditions in the dredging industry, reflecting the dynamic nature of the industry and the need for adaptable and relevant agreements.

Boskalis Australia 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