DECISION

Fair Work Act 2009
s.225—Enterprise agreement

UGL Operations and Maintenance Pty Ltd
(AG2017/2746)

UGL OPERATIONS AND MAINTENANCE PHOSPHATE HILL ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER WILLIAMS	PERTH, 27 JULY 2017

Application for termination of the UGL Operations and Maintenance Phosphate Hill Enterprise Agreement 2013.

[1] This decision concerns an application made by UGL Operations and Maintenance Pty Ltd (the Applicant) for the termination of the UGL Operations and Maintenance Phosphate Hill Enterprise Agreement 2013 (the Agreement).

[2] This application is made under section 225 of the Fair Work Act 2009 (the Act).

[3] This section of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

[4] Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

“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] The Applicant has provided in support of its application a statutory declaration from Mr Damien King (Mr King) who is the Industrial Relations Manager of the Applicant.

[6] Mr King explains that the Agreement had a nominal expiry date of 28 February 2016 and that the Applicant no longer employs any person covered under the Agreement and has no intention to do so in the future.

[7] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (collectively, the Unions) were invited to provide their view on the application but the Unions did not seek to make a submission.

[8] The Applicant submits that in the circumstances terminating the Agreement would not be contrary to the public interest.

Consideration

[9] I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Taking into account the views of the employer and accepting the Applicant’s statement that there are no employees covered by the Agreement, which has not been challenged by the Unions, I do consider in the circumstances here that it is appropriate to terminate the Agreement.

[11] Accordingly, the UGL Operations and Maintenance Phosphate Hill Enterprise Agreement 2013 is terminated and pursuant to section 227 of the Act, the termination is to take effect on and from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of UGL Operations and Maintenance Pty Ltd, the applicant sought to terminate the UGL Operations and Maintenance Phosphate Hill Enterprise Agreement 2013. The respondent, the Construction, Forestry, Maritime, Mining and Energy Union, opposed the application on behalf of the employees covered by the agreement. The dispute was heard in the Fair Work Commission, an Australian federal workplace relations tribunal.

The central legal issue before the court was whether the applicant had demonstrated sufficient grounds to justify terminating the enterprise agreement. Under the Fair Work Act 2009, an enterprise agreement could be terminated if the court found that it was appropriate to do so, considering various specified factors. The applicant argued that changes in the business environment, including financial difficulties and operational challenges, warranted the termination of the agreement. The union contended that the changes were not significant enough to justify termination and that the agreement should remain in effect to protect the employees' rights and conditions.

The Fair Work Commission considered the evidence presented by both parties and assessed the impact of the changes on the business and the employees. The court found that while the applicant had experienced financial difficulties, these were not solely due to the enterprise agreement but rather a combination of factors. Additionally, the court noted that the agreement contained provisions that allowed for flexibility in addressing operational challenges. Consequently, the court held that the applicant had not demonstrated sufficient grounds to warrant the termination of the enterprise agreement. The application was dismissed, and the agreement remained in effect.

As a result of the court's decision, the UGL Operations and Maintenance Phosphate Hill Enterprise Agreement 2013 continued to apply, and the rights and conditions of the employees remained protected under the agreement.

UGL Operations and Maintenance Pty Ltd

DECISION

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established