DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Boskalis Australia Pty Ltd
(AG2017/3648)

BOSKALIS AUSTRALIA CONTRACT PROPELLED DREDGING AMOU UNION COLLECTIVE AGREEMENT 2011

Maritime industry
DEPUTY PRESIDENT BULL	SYDNEY, 11 APRIL 2018

Termination of an agreement after its nominal expiry date, AMOU opposed to termination, public interest test, when the FWC must terminate an agreement

[1] On 18 August 2017, an application was made to the Fair Work Commission (the Commission) by Boskalis Australia Pty Ltd (the applicant) to terminate the Boskalis Australia Contract Propelled Dredging AMOU Union Collective Agreement 2011 (the Agreement) pursuant to s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement is a single enterprise agreement.

[3] On the same day applications to terminate the Boskalis Australia Contract Propelled Dredging AIMPE Union Collective Agreement 2012 and Boskalis Australia Dredging (Non Propelled Dredges, Greenfield Agreement 2012 were made to the Commission, which are subject to a separate decision. 1

[4] The Agreement was approved by the Commission on 10 August 2012 and operated from 17 August 2012 with a nominal expiry date of 30 June 2016. The 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 Agreement has been in operation for over 5 years.

[5] A statutory declaration from Mr Petrus Boere made on 18 August 2017, was filed in support of the application as required by Rule 26 of the Fair Work Commission Rules 2013 and in accordance with Part 2-4 of the Act. Mr Boere’s occupation is described as the applicant’s General Manager.

[6] On 14 September 2017 Ms Jan Thompson, an Industrial Officer for the Australian Maritime Officers Union (AMOU), provided the Commission with a statement opposing the application.

[7] In view of the AMOU’s opposition to the Agreement termination a conference was held before the Commission on 3 October 2017, with a further conference held on 16 November 2017 in an attempt to resolve the differences between the parties.

[8] Following the unsuccessful attempt to resolve the AMOU’s opposition to the application, the Commission issued directions in regard to further submissions and witness statements which were received from both parties including a further amended statement from Mr Boere. 3

[9] In view of the conflicting submissions and witness statements of both parties the Commission provided an opportunity for any witness evidence to be subject to cross-examination. The AMOU sought to cross examine Mr Boere 4 and the application was listed for a hearing to enable this to occur.

Relevant Legislation

[10] Section 225 of the Act states:

“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;

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 [2018] FWCA 556
Case: [2018] FWCA 556
Decision Date: 11 APRIL 2018

CaseChat Overview and Summary

Boskalis Australia Pty Ltd brought a proceeding before the Fair Work Commission (FWC) to terminate an enterprise agreement that had expired. The Australian Maritime Officers' Union (AMOU) opposed the termination, arguing that the agreement should continue in force to protect the public interest. The case involved determining whether the FWC was obliged to terminate the agreement, given that it had expired and AMOU objected to its termination.

The legal issue before the FWC was whether the Commission was bound to terminate the enterprise agreement after its nominal expiry date, despite the AMOU's opposition. The central question was whether the FWC had a duty to terminate the agreement under section 242(3)(a) of the Fair Work Act 2009 (Cth), and if the public interest considerations raised by the AMOU could prevent such termination.

The FWC determined that the agreement had indeed expired, and the AMOU's opposition to termination did not prevent the FWC from exercising its discretion to terminate the agreement. The FWC found that the public interest test did not provide a basis to prevent the termination of the agreement. The Commission concluded that, while public interest considerations could be a factor in the decision-making process, they were not determinative in this instance. Consequently, the FWC terminated the enterprise agreement.

The FWC's final order was to terminate the enterprise agreement, effective from the date of the decision, notwithstanding the AMOU's opposition and the public interest considerations presented. The FWC held that the agreement's expiry and the AMOU's objection did not compel the Commission to continue the agreement's operation. The decision underscored the FWC's discretion in such matters and the limited role of public interest factors in preventing the termination of an expired enterprise agreement.

Orders