Polaris Marine Pty Ltd T/A Polaris Marine Pty Ltd

[2021] FWCA 2447

[2021] FWCA 2447

FAIR WORK COMMISSION

DECISION

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

Polaris Marine Pty Ltd T/A Polaris Marine Pty Ltd
(AG2021/4855)

POLARIS MARINE PTY LTD PROJECT ENTERPRISE AGREEMENT 2018

Port authorities
DEPUTY PRESIDENT BULL	SYDNEY, 4 MAY 2021

Application for termination of the Polaris Marine Pty Ltd Project Enterprise Agreement 2018.

[1] An application has been made by Polaris Marine Pty Ltd (Polaris) pursuant to s.225 of the Fair Work Act 2009 (the Act) for the termination of the Polaris Marine Pty Ltd Project Enterprise Agreement 2018 1 (the Agreement).

[2] The Agreement was approved by the Fair Work Commission (the Commission) on 23 February 2018 and has now passed its nominal expiry date of 2 March 2021. 2 Section 225 of the Act applies to the termination of enterprise agreements that have passed their nominal expiry date and is set out below:

“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.”

[3] The Agreement, at clauses 3 and 4, names Polaris as the “Company” covered by the Agreement. As stated above, the application to terminate the Agreement is made by Polaris, and thus being the named employer covered by the Agreement has standing to make the termination application as per s.225(a) set out above.

[4] Section 226 of the Act sets out when the Commission must terminate an expired enterprise agreement where an application to terminate is made:

“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.”

Public Interest

[5] The application was accompanied by a Form 24C – Employer declaration declared by Mr Brad Hosemans, Chief Operating Officer, who submitted that:

1. The Enterprise Agreement has passed its nominal expiry date of 2 March 2021.

2. Polaris Marine Pty Ltd (the Company) no longer has any employees engaged pursuant to the scope and coverage of the Agreement.

3. The parties to the Agreement are the Company and its employees who are covered by the Agreement. There is no employee organisation party who is covered by the Agreement pursuant to s.183 of the Fair Work Act 2009 (FW Act). With the Company being the only party to the Agreement there is no prejudice to any employee or employee organisation in terminating the Agreement, nor is the termination contrary to public interest.

4. The Agreement was a three-year Enterprise Agreement approved on 23 February 2018 and expiring 2 March 2021. The Agreement was made for the purpose of allowing the Company and its employees to engage in project work available at the time in respect to commercial towing associated with particular maritime projects. The operating environment for the Company and the towage industry has changed since the Agreement was made and the Agreement is no longer relevant to or consistent with the operations of the Company. When the Agreement was made, the Company engaged in Dredging Projects and works ancillary to dredging, including pushing and pulling of hopper barges, sweeping works etc. This work is all but dried up within Australia with regard to large scale, commercial dredging projects. The Company now focuses on long term ventures, engaging employees for extended periods of time, seeking contract work that provide longevity for it and security of employment for its employees. It also has no use for an agreement limited to the scope of the Project Agreement, for limited vessel and limited employee engagement.

5. The Agreement is restrictive in relation to the way in which the Company can offer employment to potential employees. The Agreement focuses on the engagement of casual labour for project work. Whilst project work was defined, the Agreement was limited to employees engaged and involved in tugboat operations. In that respect the Agreement’s scope was quite limited. Furthermore, it was limited even further in that the Agreement only offered employment to casual employees who were engaged on a fixed term/maximum duration basis, limiting the engagement options of both the Company and any employees. The practical application of the Agreement to employees of the Company was and is limited and hence why, unsurprisingly, there are no employees engaged pursuant to this Agreement currently. The restrictive nature of the Agreement almost prohibits its use.

6. Given the scope and application of the Agreement, the operation of the Agreement is now problematic given recent changes to the FW Act in respect to casual employment. It is worth noting that the Agreement does not define a “casual employee”, but perhaps more significant is that the fact that the current agreement does not deal with the new National Employment Standards (NES) entitlement for casuals of “Casual Conversion” and is silent in respect to other NES entitlements such as Domestic Violence Leave and Community Service Leave.

7. Lastly, when considering terminating the Agreement and the effect of termination on any parties, given there are no employee parties, it follows that there is no detriment or disadvantage.

[6] For the reasons provided by the applicant, I am satisfied that it is not contrary to the public interest to terminate the Agreement.

Employer Views

[7] The applicant employer having made the application clearly supports termination of the Agreement.

Employee Views

[8] There are no employees covered by the Agreement.

Employee Organisation Views

[9] There are no employee organisations covered by the Agreement.

Effect of the termination

[10] It is accepted that the termination of the Agreement will have no detriment or disadvantage as there are no employee parties. It is also submitted that the Agreement is restrictive in relation to the way that the Company can offer employment to potential employees, and it follows that the termination of this Agreement will also eliminate those restrictions.

Consideration

[11] The application having been made pursuant to s.225 of the Act and having considered and being satisfied that it is not contrary to the public interest to terminate the Agreement and taking into account all the required criteria, including the likely effect that the termination will have, the Commission considers that it is appropriate to terminate the Agreement.

[12] The Agreement is terminated and pursuant to s.227 of the Act, the termination will operate from the date of this Decision.

[13] An order to terminate the Agreement [PR729158] will issue with this Decision.

DEPUTY PRESIDENT

 1   AE427454

 2   [2018] FWCA 1194

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<AE427454  PR729154>