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

BT Marine Australia Pty Ltd (previously Smit Marine Australia Pty Ltd)

SMIT MARINE AUSTRALIA AND AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS GREENFIELDS AGREEMENT

Application for termination of the Smit Marine Australia and Australian Institute of Marine and Power Engineers Greenfields Agreement

[1] BT Marine Australia Pty Ltd (formerly Smit Marine Australia Pty Ltd) (applicant) has applied under s.225 of the Fair Work Act 2009 (Act) to terminate the Smit Marine Australia and Australian Institute of Marine and Power Engineers Greenfields Agreement (AG2010/19670) (Agreement). The Agreement is expressed to apply to the harbour towage operations of Smit Marine Australia Pty Ltd in the Port of Gladstone, and to any operations ancillary to provision of harbour towage operations in the Port of Gladstone.[1] The parties to the Agreement are defined as Smit Marine Australia Pty Limited, the Australian Institute of Marine and Power Engineers (AIMPE), and employees covered by the Agreement.[2]

[2] The nominal expiry date of the Agreement is 31 December 2011.

[3] On 13 March 2026 I issued directions requiring the AIMPE to provide the Fair Work Commission (Commission) with any submissions it wished to make in relation to the application. On 16 March 2026, the AIMPE advised that it did not oppose the application.

[4] In the circumstances, I have decided to deal with the application on the papers without conducting a hearing.

225 Application for termination of an enterprise agreement after its nominal expiry date

(1) 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 Act provides:

226 Terminating an enterprise agreement after its nominal expiry date

(1) 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 the continued operation of the agreement would be unfair for the employees covered by the agreement; or

• (b) the FWC is satisfied that the agreement does not, and is not likely to, cover any employees; or

• (c) all of the following apply:

  • (i) the FWC is satisfied that the continued operation of the enterprise agreement would pose a significant threat to the viability of a business carried on by the employer, or employers, covered by the agreement;

  • (ii) the FWC is satisfied that the termination of the enterprise agreement would be likely to reduce the potential of terminations of employment covered by subsection (2) for the employees covered by the agreement;

  • (iii) if the agreement contains terms providing entitlements relating to the termination of employees' employment - each employer covered by the agreement has given the FWC a guarantee of termination entitlements in relation to the termination of the agreement.

(1A) However, the FWC must terminate the enterprise agreement under subsection (1) only if the FWC is satisfied that it is appropriate in all the circumstances to do so.

(2) This subsection covers a termination of the employment of an employee:

• (a) at the employer's initiative because the employer no longer requires the job done by the employee to be done by anyone, except where this is due to the ordinary and customary turnover of labour; or

• (b) because of the insolvency or bankruptcy of the employer.

(3) In deciding whether to terminate the agreement, the FWC must consider the views of the following covered by the agreement:

• (a) the employees (unless there are no employees covered by the agreement);

• (b) each employer;

• (c) each employee organisation (if any).

Note: The President may be required to direct a Full Bench to perform a function or exercise a power in relation to the matter if any of the employers, employees, or employee organisations, covered by the agreement oppose the termination (see subsection 615A(3)).

(4) In deciding whether to terminate the agreement (the existing agreement), the FWC must have regard to:

• (a) whether the application was made at or after the notification time for a proposed enterprise agreement that will cover the same, or substantially the same, group of employees as the existing agreement; and

• (b) whether bargaining for the proposed enterprise agreement is occurring; and

• (c) whether the termination of the existing agreement would adversely affect the bargaining position of the employees that will be covered by the proposed enterprise agreement.

(5) In deciding whether to terminate the agreement, the FWC may also have regard to any other relevant matter.

[7] The Agreement has passed its nominal expiry date and the applicant has standing to make the application pursuant to s.225(a) of the Act because it is the employer that is covered by the Agreement. Accordingly, the jurisdictional prerequisites for the making of an application under s.225 of the Act are satisfied.

[8] The applicant filed a declaration by its authorised representative, Mr. Jared Laughlin, in support of the application. The declaration attested to the fact that there were no employees covered or likely to be covered by the Agreement and that the applicant does not anticipate employing persons in the foreseeable future who would be covered by the scope of the Agreement. Mr. Laughlin said that termination of the Agreement would not alter the terms of employment of any employee, reduce any entitlement or cause any person to revert to a modern award.

[9] Further, Mr. Laughlin said that the Agreement had been replaced by two subsequent agreements, in 2012 and then in 2015, and that the coverage clauses in those agreements remained substantially the same. Mr. Laughlin also said that during 2016, an entity called Smit Lamnalco Towage (Australia) Pty Ltd (SLTA) (now named Boluda Towage (Australia) Pty Ltd) took over towage operations in the Port of Gladstone. As a result, the current towage operations of the corporate group are performed by SLTA, not the applicant, and the relevant applicable enterprise agreement for employees performing towage work for the corporate group in the Port of Gladstone is the Smit Lamnalco Towage (Australia) Pty Ltd and AIMPE Gladstone Enterprise Agreement 2025.

[10] On the material filed with the Commission I am satisfied the Agreement does not and is not likely to cover any employees and that the requirement of s.226(1)(b) is met. I have taken into account the views of the applicant and the AIMPE referred to above in relation to this application. For the purposes of s.226(4) there is no "proposed enterprise agreement" and none of the matters in that subsection are relevant to the application before me. There are no other relevant matters that I should take into account in the determination of this matter of which I am aware. I am satisfied that it is appropriate in all the circumstances to terminate the Agreement.

[11] Given my findings in respect of ss. 225 and 226 of the Act, I am required to terminate the Agreement. The termination will operate from 24 March 2026.

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