UGL Operations and Maintenance Pty Limited

[2022] FWCA 1294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

UGL Operations and Maintenance Pty Limited

(AG2022/215)

UGL Operations and Maintenance Pty Ltd Caltex Kurnell Electrical Enterprise Agreement 2014

Electrical contracting industry
DEPUTY PRESIDENT CROSS	SYDNEY, 13 APRIL 2022

Application for termination of the UGL Operations and Maintenance Pty Ltd Caltex Kurnell Electrical Enterprise Agreement 2014

An application has been made pursuant to s.225 of the Fair Work Act 2009 (Cth) (the Act) by UGL Operations and Maintenance Pty Limited (the Applicant) for approval to terminate the UGL Operations and Maintenance Pty Ltd Caltex Kurnell Enterprise Agreement 2014 (the Agreement). The nominal expiry date of the Agreement is 31 December 2015.

Sections 225 and 226 of the Act provide:

“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.

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.”

Consideration

The Applicant is an employer covered by the Agreement and thus has standing to make the termination application. The Agreement has passed its nominal expiry date of 31 December 2015.

The Applicant identified that the Agreement does not cover any employees.

The Agreement covers the Electrical Trades Union (ETU). The views of the ETU were sought. However, noting that no members of the ETU were employed under the Agreement, the ETU declined to make submissions in relation to the Application.

Determination

Based on the material accompanying the application and the information provided to the Commission, I am satisfied that the requirements of s.226 have been met, and that it is appropriate to terminate the Agreement. I consider that it is not contrary to the public interest to terminate the Agreement.
Pursuant to s.226 of the Act, the Agreement is terminated. The termination will come into effect from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by UGL Operations and Maintenance Pty Limited for the termination of the UGL Operations and Maintenance Pty Ltd Caltex Kurnell Electrical Enterprise Agreement 2014. This application was made on the grounds that there had been a significant change in circumstances, specifically a substantial reduction in the number of employees engaged under the agreement. The dispute centred around whether the significant change in circumstances warranted the termination of the enterprise agreement and the potential impact on the employees' rights and entitlements.

The legal issues the court had to address included determining whether there had been a significant change in circumstances as defined by section 232(1)(a) of the Fair Work Act 2009, and whether such a change justified the termination of the enterprise agreement. The court had to consider the specific facts and evidence presented by both parties regarding the reduction in the workforce and its implications on the operation of the enterprise agreement. Additionally, the court needed to balance the rights of the employer to manage its business with the rights of the employees to have their terms and conditions of employment protected under the enterprise agreement.

The court found that there had indeed been a significant change in circumstances due to the substantial reduction in the workforce, which impacted the practical operation of the enterprise agreement. The court concluded that the changes were significant enough to warrant the termination of the agreement. The decision was based on the specific evidence presented, which demonstrated a material shift in the employment landscape at the workplace. The court's reasoning reflected a careful consideration of both the employer's need to adapt to changing business conditions and the employees' entitlement to job security and fair terms of employment. The outcome was that the application for termination was successful, and the enterprise agreement was terminated as of the date specified in the decision.

The final orders of the court included the termination of the UGL Operations and Maintenance Pty Ltd Caltex Kurnell Electrical Enterprise Agreement 2014, effective from the date of the decision. The court also directed that any outstanding matters under the agreement would be resolved in accordance with the Fair Work Act 2009 and any applicable provisions of other relevant industrial instruments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established