DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Coastal Tug & Barge Pty Ltd
(AG2020/3367; AG2020/3368; AG2020/3369)

COASTAL TUG & BARGE & AMOU ENTERPRISE AGREEMENT 2016; COASTAL TUG & BARGE & MUA ENTERPRISE AGREEMENT 2016; COASTAL TUG & BARGE & AIMPE ENTERPRISE AGREEMENT 2016

Northern Territory
COMMISSIONER SPENCER	BRISBANE, 24 NOVEMBER 2020

Application for termination of the Coastal Tug & Barge & MUA Enterprise Agreement 2016; Coastal Tug & Barge & AMOU Enterprise Agreement 2016; and Coastal Tug & Barge & AIMPE Enterprise Agreement 2016 – multiple related Agreements – applications under s.225 – no employees covered by Agreements.

[1] On 6 November 2020, Coastal Tug & Barge Pty Ltd (the Applicant) made three applications to the Fair Work Commission (the Commission) under s.225 of the Fair Work Act (the Act), seeking the termination of three enterprise agreements after their nominal expiry dates.

[2] The Agreements are as follows:

• Coastal Tug & Barge & AMOU Enterprise Agreement 2016 [AE422035]

• Coastal Tug & Barge & AIMPE Enterprise Agreement 2016 [AE422717]

• Coastal Tug & Barge & MUA Enterprise Agreement 2016 [AE422718]

[3] The Agreements each had a nominal expiry date of 27 January 2018.

[4] The Agreements covered each of The Australian Maritime Officers’ Union (the AMOU), the Australian Institute of Marine and Power Engineers (the AIMPE), and the then Maritime Union of Australia (the MUA), now the Construction, Forestry, Maritime, Mining and Energy Union (the CFMMEU). The AMOU, AIMPE, and CFMMEU were included in the correspondence and invited to provide their views regarding the applications for termination of the Agreements.

[5] The three applications were allocated to my Chambers for consideration. On 11 November 2020, I issued Directions for filing of material in relation to the applications, directing the Applicant to address the relevant criteria for consideration under s.225 of the Act. The Applicant filed a response on 11 November 2020.

[6] The relevant provisions of the Act are as follows:

“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;

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[7] Mr Mark Rigoni, General Manager of the Applicant, filed three Form 24C Statutory Declarations in support of the applications to terminate the Agreements. Mr Rigoni stated that the Applicant sought the termination of the Agreements on the basis that no employees are currently employed by the Applicant under the Agreements as the Applicant no longer employs tug crews in the port of Darwin, having reached agreement with the main service provider in the port, Svitzer, to be a supplier of floating hardware only on a contract basis. Mr Rigoni said that the Applicant had not employed any employees covered by the Agreement for over two years prior to the making of the application. Mr Rigoni stated that it would not be contrary to the public interest to terminate the Agreements which have been expired for almost three years, and where the Applicant had ceased to be a supplier of labour covered by the Agreement.

In email correspondence to my Chambers, Mr Mark Diamond, Principal of the Workplace Advisory Group representing the Applicant, said that the Applicant no longer supplied towage in the port of Darwin and no longer employed crew. The Applicant currently had no employees covered by the Agreements so would not be available for the Applicant to ascertain views of employees it no longer had as required by s.226(b).

[8] As noted above, the AMOU, AIMPE, and CFMMEU were parties to several of the Agreements. I wrote to each union on 16 November 2020 requesting they advise whether they supported termination of the Agreement or opposed the termination. The AMOU, AIMPE, and CFMMEU confirmed in writing that they did not oppose the termination of the Agreement.

[9] Taking into account the information provided in response to the matters in s.226 of the Act, and in accordance with the above submissions, the material satisfies the legislative requirements that the termination of the Agreements is appropriate. The termination of each of the Agreements will take effect from 24 November 2020.

[10] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Coastal Tug & Barge Pty Ltd recently faced an application to terminate multiple enterprise agreements through the Fair Work Commission. The applicants, representing the interests of employees, sought to terminate the Coastal Tug & Barge & MUA Enterprise Agreement 2016, the Coastal Tug & Barge & AMOU Enterprise Agreement 2016, and the Coastal Tug & Barge & AIMPE Enterprise Agreement 2016. The dispute centred around the contention that no employees were currently covered by these agreements, leading to the applications under section 225 of the Fair Work Act 2009. The Commission was required to determine whether the agreements should be terminated due to the absence of employees covered by these agreements.

The legal issues before the Commission included whether the absence of employees covered by the agreements rendered them ineffective and whether the applications should be accepted under the specified section of the Fair Work Act. The Commission needed to assess if the agreements were indeed redundant due to the lack of applicable employees and whether the process for terminating these agreements was correctly followed by the applicants. It also considered the broader implications of terminating enterprise agreements in cases where no employees were covered, which could affect the enforcement and administration of such agreements in the future.

Upon reviewing the submissions and evidence, the Commission determined that the agreements were no longer applicable as no employees were covered by them. The Commission found that the process for terminating the agreements was correctly followed and that the applicants' arguments were valid. Consequently, the Commission granted the applications and terminated the agreements. This decision effectively removes the agreements from the Fair Work Register, ensuring that they no longer have any legal effect.

The final orders of the Commission included the termination of the Coastal Tug & Barge & MUA Enterprise Agreement 2016, the Coastal Tug & Barge & AMOU Enterprise Agreement 2016, and the Coastal Tug & Barge & AIMPE Enterprise Agreement 2016. These agreements were removed from the Fair Work Register, and the decision effectively ensures that they are no longer in force. The termination of these agreements means that no further legal obligations arise from them, and any disputes or claims that were previously governed by these agreements must now be resolved under the applicable general industrial laws.

Coastal Tug & Barge 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