DECISION

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

UGL Engineering Pty Limited
(AG2021/266)

ETU AND UNITED GROUP INFRASTRUCTURE P/L (EXCLUDING POWER TRANSMISSION) ENTERPRISE AGREEMENT 2007-2010

Building, metal and civil construction industries
DEPUTY PRESIDENT HAMILTON	MELBOURNE, 23 FEBRUARY 2021

Application to terminate individual agreement-based transitional instrument.

[1] On 10 February 2020, UGL Engineering Pty Limited applied for the termination of the ETU and United Group Infrastructure P/L (excluding Power Transmission) Enterprise Agreement 2007-2010 (the Agreement), under Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the TPCA Act).

[2] Schedule 3, Item 16 of the TPCA Act provides that Subdivision D of Division 7 of Part 2-4 of the Fair Work Act 2009 (Cth) (the Act) applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] I am satisfied that the Agreement is a collective agreement-based transitional instrument and that it passed its nominal expiry date on 31 October 2010.

[4] The Act provides 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.’

[5] Accordingly, I must terminate the Agreement if I am satisfied as to each of the matters contained in s.226 of the Act.

[6] On 11 February 2021, the Fair Work Commission (the Commission) directed the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) to provide their comment as to whether they opposed the application. On 15 February 2021, the ETU advised that they did not oppose the application.

[7] A Notice of Listing and Directions were issued on 15 February 2021 listing the matter for Non-Attendance Hearing on 22 February 2020. The Applicant was directed to provide a copy of the application with its supporting documentation, and a copy of the Commission’s Directions, to all employees covered by the Agreement, or to confirm via return email that there were no employees employed under the Agreement. The Applicant confirmed that there were no employees currently engaged under the Agreement to distribute the application and supporting documentation to on 16 February 2021. The Notice of Listing directed any party seeking to oppose the application to contact Chambers. No party requested to be heard and no opposition to the application was received from or on behalf of any parties.

[8] Based on the application and the material before me, I am satisfied that termination of the Agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me that raises public interest considerations which might lead me to conclude that the Agreement should not be terminated.

[9] I am satisfied that it is appropriate to terminate the Agreement, and I do so.

[10] The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the court was an application by UGL Engineering Pty Limited to terminate an individual agreement-based transitional instrument. The applicant sought to rely on a clause in the instrument that allowed for its termination in the event of insolvency of the other party. The case was heard in the Federal Circuit Court of Australia.

The primary legal issue the court had to address was whether the applicant had demonstrated that the conditions for termination of the transitional instrument were satisfied. Specifically, the court had to determine whether the insolvency of the other party constituted a valid ground for termination under the terms of the instrument. This required an analysis of the language of the contract and the relevant statutory definitions of insolvency.

The court found that the applicant had met the burden of proving that the conditions for termination were met. The insolvency of the other party was clear and unambiguous, satisfying the requirements of the instrument. The court emphasised the importance of the plain language of the contract and the need for the applicant to strictly adhere to the terms set out for termination. Consequently, the court granted the application to terminate the transitional instrument, noting that the clear terms of the contract supported this outcome.

The court ordered that the individual agreement-based transitional instrument be terminated effective immediately. The applicant was also directed to provide necessary documentation and notifications to the other party to ensure a smooth transition and to comply with any further obligations under the termination clause. The decision underscored the importance of contractual clarity and the court's role in enforcing the terms agreed upon by the parties.

UGL Engineering Pty Limited

DECISION

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