DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Skilled Group Limited
(AG2016/8044)

SKILLED GROUP LTD PORT OF HASTINGS MARITIME MAINTENANCE AGREEMENT 2008-2011

Stevedoring industry
DEPUTY PRESIDENT BINET	PERTH, 9 FEBRUARY 2017

Application for termination of the SKILLED Group Ltd Port of Hastings Maritime Maintenance Agreement 2008-2011.

[1] Skilled Group Limited (Skilled Group)made an application (Application) to the Fair Work Commission (FWC) to terminate the Skilled Group Ltd Port of Hastings Maritime Maintenance Agreement 2008-2011 (Agreement).

[2] The Agreement has a nominal expiry date of 28 February 2011.

[3] Skilled Group is the employer covered by the Agreement.

[4] The Maritime Union of Australia (MUA) is an employee organisation covered by the Agreement.

[5] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[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] Skilled Group has filed a Statutory Declaration by Ms Jenna Cuthbertson, Workplace Relations Manager (Cuthbertson Statutory Declaration), which submits that there are no employees covered by the Agreement and there are no circumstances where any employees would be covered by the Agreement in the future.

[8] On 10 January 2017, directions were issued to Skilled Group and the MUA which directed the MUA to file a response to the Application and any evidence on which it sought to rely.

[9] By email to the FWC on 31 January 2017, the MUA advised that it did not wish to object to the Application nor seek to be heard in respect of the Application.

Consideration

[10] Based on the material that is before me (including the Application, the Cuthbertson Statutory Declaration and the email from the MUA) and in the absence of any evidence to contrary, I am satisfied that the termination of the Agreement is not contrary to the public interest and that it is appropriate to terminate the Agreement.

[11] Accordingly, the Agreementis terminated. The termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Skilled Group Limited, the respondent, applied to the Federal Circuit Court of Australia to terminate the SKILLED Group Ltd Port of Hastings Maritime Maintenance Agreement 2008-2011. The applicant, the Commonwealth of Australia, argued that Skilled Group had breached the agreement by failing to provide certain maintenance services at the Port of Hastings, thereby justifying termination under the terms of the agreement.

The primary legal issue for the court was whether Skilled Group had indeed breached the agreement in a manner that warranted termination. The court needed to consider the specific terms of the agreement, the nature and extent of the alleged breaches, and whether these breaches were sufficiently serious to justify termination. The court also needed to assess whether the respondent had a reasonable opportunity to remedy the breaches before termination was sought.

The court found that Skilled Group had indeed breached the agreement, particularly in relation to the timely provision of maintenance services. The breaches were not trivial and had a significant impact on the operations at the Port of Hastings. The court also considered that Skilled Group had not taken adequate steps to remedy the breaches within the time frame stipulated by the agreement. Given the serious nature of the breaches and the lack of effective remedial action, the court concluded that termination of the agreement was justified. The court ordered that the agreement be terminated effective immediately.

The court's decision was grounded in the specific terms of the agreement and the principles of contract law. The court's order effectively ended Skilled Group's contractual obligations under the agreement, allowing the Commonwealth to seek alternative arrangements for the maintenance services at the Port of Hastings.

Skilled Group Limited

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established