Dredging International (Australia) Pty Ltd

[2019] FWCA 209

[2019] FWCA 209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225—Enterprise agreement

Dredging International (Australia) Pty Ltd
(AG2018/6438)

DREDGING INTERNATIONAL CONTRACT DREDGING (NON-PROPELLED DREDGES, AWU) ENTERPRISE AGREEMENT 2012

Dredging industry
DEPUTY PRESIDENT BINET	PERTH, 15 JANUARY 2019

Application for termination of the Dredging International Contract Dredging (Non-propelled dredges, AWU) Enterprise Agreement 2012.

[1] Dredging International (Australia) Pty Ltd (Dredging International)has made an application (Application) to the Fair Work Commission (FWC) to terminate the Dredging International Contract Dredging (Non-propelled dredges, AWU) Enterprise Agreement 2012 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

[2] The Agreement is a single enterprise agreement made pursuant to section 185 of the FW Act with a nominal expiry date of 31 July 2016.

[3] The parties to the Agreement are Dredging International and its employees eligible to be a member of the Australian Workers’ Union (AWU) engaged as a casual and employed by Dredging International to work in or in association with dredging (Employees).

[4] The AWU is covered by the Agreement.

[5] Section 225 of the FW 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;

(c) an employee organisation covered by the agreement.”

[6] Section 226 of the FW Act states:

“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.”

[7] In support of the Application, Dredging International filed a Statutory Declaration (Bruce Declaration) by Mr Gordon Bruce, which states that since approximately October 2013 the Agreement has not had application to any employee, there are no employees currently engaged or any intention to engage any new employees which would be covered by the Agreement.

[8] On 23 November 2018, directions were issued with respect to the Application. The AWU were directed to file an outline of submissions in response to the Application and any evidence on which the AWU sought to rely by 6 December 2018.

[9] In its response to the directions, the AWU stated that the AWU does not object to the Application, and that the AWU does not wish to make any submissions in relation to the Application.

Consideration

[10] As the Agreement has passed its nominal expiry date and the Applicant is an employer covered by the Agreement, I find that the Applicant has standing to make the Application pursuant to section 225(a) of the FW Act.

[11] Based on the material contained in the Bruce Declaration filed with the Application, there is nothing before me which raises public interest considerations which might weigh against the termination of the Agreement. I am therefore satisfied that it is not contrary to the public interest to terminate the Agreement.

[12] No opposition to the Application was received for, or on behalf, of any employees or the organisation entitled to represent them.

[13] Pursuant to section 225 of the Act, and having considered and being satisfied as to each of the matters contained in section 226 of the Act, the Agreement is terminated.

[14] The termination will come into effect from 15 January 2019.

DEPUTY PRESIDENT

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