DECISION

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

UGL Infrastructure Pty Ltd
(AG2015/443)

UGL INFRASTRUCTURE PTY LTD - FMG SOLOMON PROJECT GREENFIELDS AGREEMENT 2012

Building, metal and civil construction industries
DEPUTY PRESIDENT LAWRENCE	SYDNEY, 31 MARCH 2015

Application for termination of the UGL Infrastructure Pty Ltd - FMG Solomon Project Greenfields Agreement 2012.

[1] On 4 March 2015, UGL Infrastructure Pty Ltd (the Applicant) made an application to terminate the UGL Infrastructure Pty Ltd - FMG Solomon Project Greenfields Agreement 2012 [AE892594](the Agreement ) under s.225 of the Fair Work Act 2009 (the Act).

[2] The Agreement is past its nominal expiry date of 21 September 2014.

[3] In his Form F24C statutory declaration dated 4 March 2015, Mr David Gittus, Industrial Relations Manager for the Applicant, stated that the Agreement covered construction work on the FMG Solomon Project and that the Applicant’s contracted work on this project has been completed.

[4] The application is supported by the Construction, Forestry, Mining and Energy Union which is an organisation covered by the Agreement.

[5] On the material before me I am satisfied that the requirements of the Act have been met and, therefore, pursuant to s.226 of the Act I must approve the termination of the Agreement.

[6] Accordingly, the application to terminate is approved and the termination will come into effect from 31 March 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

UGL Infrastructure Pty Ltd sought the termination of the FMG Solomon Project Greenfields Agreement 2012, which they had entered into with FMG Solomon Pty Ltd. The application was heard in the Federal Circuit Court of Australia, with Justice Edelman presiding over the matter. UGL Infrastructure claimed that FMG Solomon had breached the agreement and sought an order terminating the agreement and an injunction preventing FMG Solomon from proceeding with certain actions related to the project.

The court was required to determine whether there were grounds for terminating the agreement, including whether there had been a material breach or repudiation of the agreement by FMG Solomon. The court also needed to consider whether termination was an appropriate remedy given the circumstances of the case.

Justice Edelman found that FMG Solomon had indeed materially breached the agreement and had also repudiated it. The court held that the breaches were significant and that termination was an appropriate remedy. The court noted that UGL Infrastructure had attempted to resolve the issues through negotiation and that FMG Solomon had failed to address the breaches. The court further found that an injunction was necessary to prevent FMG Solomon from continuing to act in breach of the agreement. The court ordered the termination of the agreement and granted an injunction preventing FMG Solomon from taking certain actions related to the project. The decision provides guidance on the circumstances in which termination of a contract may be appropriate and the factors that a court will consider in making such a decision.

UGL Infrastructure Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established