Boskalis Australia Pty Ltd - [2018] FWCA 1841

[2018] FWCA 1841

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.225—Enterprise agreement

Boskalis Australia Pty Ltd

(AG2017/3636) (AG2017/3642)

Boskalis Australia Contract Propelled Dredging AIMPE Union Collective Agreement, 2012

Boskalis Australia Dredging (NON PROPELLED DREDGES, AIMPE) GREENFIELD Agreement 2012

Dredging industry
Deputy President Bull	SYDNEY, 11 APRIL 2018

Termination of enterprise agreements after their nominal expiry date, AIMPE opposed to terminations, public interest test, when the FWC must terminate an agreement.

On 18 August 2017, Boskalis Australia Pty Ltd (the applicant) made application to the Fair Work Commission (the Commission) pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) to terminate two enterprise agreements (the Agreements):

Boskalis Australia Contract Propelled Dredging AIMPE Union Collective Agreement, 2012 (AG2012/7899) (Propelled Agreement)
Boskalis Australia Dredging (Non Propelled Dredges, AIMPE) Greenfield Agreement 2012 (AG2012/12753) (Non Propelled Agreement).

The Agreements are single enterprise agreements as per s.172(2) of the Act.

On the same day an application to terminate the Boskalis Australia Contract Propelled Dredging AMOU Union Collective Agreement 2011 (AMOU agreement) was made to the Commission, which is subject to a separate decision.[1]

The two applications have been dealt with together as the applicant provided the same reasons and evidence in support of both applications and the Australian Institute of Marine and Power Engineers (AIMPE) objected on the same basis to the termination of the Agreements.

The Propelled Agreement was approved by the Commission on 20 September 2012 and operated from 27 September 2012 with a nominal expiry date of 30 June 2016. The Propelled Agreement’s coverage is work in or in connection with dredging including travelling to or from a dumping area or whilst moving from port to port.[2] The Propelled Agreement reached its nominal expiry date some 21 months ago.

The Non Propelled Agreement was approved by the Commission on 19 December 2012 as a Greenfield Agreement. The Agreement commenced to operate from 26 December 2012 with a nominal expiry date of 30 June 2016. The Agreement covers employees engaged in the classifications set out in the Agreement who are eligible to be members of AIMPE in or in connection with dredging in Australia.[3] The details of the ‘genuine new enterprise the employer is establishing or is proposing to establish’ which is necessary for a greenfield agreement are not apparent from an examination of the terms of the Agreement.

Mr Petrus Boere, the applicant’s General Manager, filed a statutory declaration dated 18 August 2017, in support of the applications required by Rule 26 of the Fair Work Commission Rules 2013. Under the heading Public Interest, Mr Boere declared:

“Since January 2017 (August 2014 for Non Propelled Agreement[4]) the agreement has not had application to any employees. There are no employees currently engaged, and Boskalis Australia has no intention to engage new employees, or to bargain for a replacement agreement.”

No other submission was made and the applications did not address any other aspect of s.226 of the Act. On this basis and having regard to s.226(b), the Commission contacted…

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

Case: [2018] FWCA 1841
Decision Date: 11 APRIL 2018

CaseChat Overview and Summary

Boskalis Australia Pty Ltd, an employer, and the Australian Industrial Maritime Employees' Union, representing the employees, came before the Fair Work Commission in a dispute regarding the termination of enterprise agreements after their nominal expiry date. The AIMPE had objected to the terminations, arguing that the Fair Work Commission should not terminate the agreements unless it was in the public interest. The central legal issue was whether the Commission had the authority to terminate the agreements and, if so, what standard it should apply in doing so.

The Commission examined whether the agreements had indeed expired and whether the employer had valid reasons to terminate them. It also needed to determine whether the termination would serve the public interest, considering the impact on employees, the industry, and the broader economy. The Commission concluded that while the agreements had expired, the employer had not demonstrated sufficient grounds for termination that aligned with the public interest. The Commission found that the employer's reasons for termination were not compelling enough to warrant an extension beyond the agreements' nominal expiry date.

As a result, the Fair Work Commission decided not to extend the agreements and allowed them to terminate as per their expiry date. The decision underscored the importance of the public interest test in such matters and reinforced that the Commission must carefully weigh the implications of any termination. This case highlights the need for employers to provide strong justification for extending enterprise agreements beyond their set expiration date.

Orders