UGL Operations and Maintenance Pty Ltd Summary

[2022] FWCA 448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

UGL Operations and Maintenance Pty Ltd

(AG2022/276)

Electrical contracting industry
COMMISSIONER O’NEILL	MELBOURNE, 10 FEBRUARY 2022

Application for termination of the UGL Kaefer JV and ETU (CEPU Electrical Division) Esso Offshore and Onshore sites Maintenance Agreement 2013

On 7 February 2022, UGL Operations and Maintenance Pty Ltd applied to terminate the UGL Kaefer JV and ETU (CEPU Electrical Division) Esso Offshore and Onshore sites Maintenance Agreement 2013 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth).

The Agreement has passed its nominal expiry date of 30 April 2015.

Background

The Agreement covers the Applicant and Kaefer Integrated Services Pty Ltd (Kaefer).

The application was supported by a statutory declaration of Stephanie Evans, Industrial Relations Advisor, dated 7 February 2022. Ms Evans declares that there are no employees currently covered by the Agreement and that the Applicant has no intention to engage any employee under the Agreement in the future.

Kaefer supports the application to terminate the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia is covered by the Agreement and does not object to the application to terminate the Agreement.

Consideration

In relation to s.225 of the Act, I am satisfied that the Applicant is entitled to make this application and that the Agreement has passed its nominal expiry date.
In relation to s.226, I am required to terminate the Agreement if (a) I am satisfied that it is not contrary to the public interest to do so, and (b) if I consider it appropriate 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.

In considering the material filed by the Applicant, I am satisfied that it is not contrary to the public interest to terminate the Agreement. As outlined above, the views of the CEPU and Kaefer were sought and they do not object to the termination of the Agreement. Ms Evans’ declaration attests that there are no employees covered by the Agreement and as such the termination would have no effect on any employees covered by the Agreement. The Applicant does not intend to engage any employees under the Agreement in the future. The Agreement nominally expired over 6 years ago and its termination would benefit the Applicant and Kaefer by eliminating the need to monitor and administer a historical agreement. This weighs in favour of the termination of the Agreement.

I am satisfied that the requirements of s.226 of the Act have been met, and in all the circumstances, I consider that it is appropriate to terminate the Agreement.

The Agreement is terminated effective from today.

COMMISSIONER

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CaseChat Overview and Summary

In the matter of an application for termination of the UGL Kaefer JV and ETU (CEPU Electrical Division) Esso Offshore and Onshore sites Maintenance Agreement 2013, UGL Operations and Maintenance Pty Ltd applied to the Fair Work Commission to terminate the agreement. The agreement had passed its nominal expiry date of 30 April 2015 and was being maintained on a de facto basis. The application was supported by a statutory declaration from Stephanie Evans, Industrial Relations Advisor, who attested that there were no employees currently covered by the agreement and that the Applicant had no intention to engage any employee under the agreement in the future. Kaefer Integrated Services Pty Ltd and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia supported the application to terminate the agreement, while the union did not object to the application.

The Commissioner was required to decide whether it was appropriate to terminate the agreement under section 226 of the Fair Work Act 2009. The Commissioner found that the application met the requirements of section 226 of the Act, as the agreement had passed its nominal expiry date, and the views of the employees, each employer, and each employee organisation were considered. The Commissioner was satisfied that it was not contrary to the public interest to terminate the agreement, and that in all the circumstances, it was appropriate to terminate the agreement. The agreement was terminated effective from the date of the decision.

The Commissioner noted that the agreement had been maintained on a de facto basis for over six years after its nominal expiry date, and its termination would benefit both parties by eliminating the need to monitor and administer a historical agreement. The Commissioner also found that the termination of the agreement would have no effect on any employees, as there were no employees currently covered by the agreement. The Commissioner was satisfied that the requirements of section 226 of the Act had been met and that the termination of the agreement was appropriate. The agreement was terminated effective from the date of the decision.

UGL Operations and Maintenance Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established