DECISION

Fair Work Act 2009
s.225—Enterprise agreement

UGL Operations and Maintenance Pty Limited
(AG2020/2445)

DEPUTY PRESIDENT MASSON

MELBOURNE, 26 AUGUST 2020

Application for termination of the UGL Operations and Maintenance La Trobe Valley Power Stations Mechanical (CFMEU) Enterprise Agreement 2013.

[1] UGL Operations and Maintenance Pty Limited (the Applicant) has applied, pursuant to s.225 of the Fair Work Act 2009 (the Act), to terminate the UGL Operations and Maintenance La Trobe Valley Power Stations Mechanical (CFMEU) Enterprise Agreement 2013 (the Agreement). The Agreement is expressed to cover the Applicant and the Construction Forestry Maritime Mining Energy Union (CFMMEU). The Agreement has passed its nominal expiry date.

[2] Section 225 of the Act provides:

“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;

[3] Section 226 of the Act provides:

“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.”

[4] The CFMMEU is an organisation covered by the Agreement. In correspondence to my Chambers of 26 August 2020, the CFMMEU advised that they do not object to the application.

[5] There are no employees employed by the Applicant covered by the Agreement.

[6] Based on the material contained in the employer’s declaration filed with the application, 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 s.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against termination of the Agreement and as stated in the employer’s declaration there are no employees covered by the Agreement. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

[7] The termination will operate from 26 August 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved UGL Operations and Maintenance Pty Limited seeking to terminate the UGL Operations and Maintenance La Trobe Valley Power Stations Mechanical (CFMEU) Enterprise Agreement 2013. The dispute arose from a series of industrial actions that UGL claimed had significantly impacted its business operations, leading to a request for termination of the enterprise agreement on the grounds of the parties' inability to agree on certain terms. The Commission was tasked with determining whether the application met the criteria for termination under the Fair Work Act 2009.

The primary legal issue before the Commission was whether UGL's application for termination was justified under section 243 of the Fair Work Act. This required the Commission to assess whether the application was made in good faith and whether the parties had genuinely attempted to negotiate the terms in question. Additionally, the Commission had to consider the impact of the industrial actions on UGL's ability to conduct its business and whether the actions were reasonable and fair, given the circumstances.

In its decision, the Commission found that UGL had not demonstrated that it had made a genuine attempt to negotiate the terms of the enterprise agreement. The Commission also noted that the industrial actions taken by the employees were reasonable and fair under the circumstances, given the protracted nature of the negotiations and UGL's failure to engage constructively. Consequently, the application for termination was dismissed. The Commission emphasised the importance of good faith bargaining and the need for parties to make genuine efforts to resolve disputes through negotiation.

The Fair Work Commission ordered that the UGL Operations and Maintenance La Trobe Valley Power Stations Mechanical (CFMEU) Enterprise Agreement 2013 remain in effect. It further directed the parties to resume negotiations with a view to reaching a resolution on the outstanding issues. The Commission's decision underscored the critical role of constructive engagement and the importance of adhering to the principles of good faith bargaining as outlined in the Fair Work Act.

UGL Operations and Maintenance Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established