DECISION

Fair Work Act 2009
s.225—Enterprise agreement

UGL Operations and Maintenance Pty Ltd
(AG2017/2438)

UGL RESOURCES PTY LTD GOVE SERVICES ENTERPRISE AGREEMENT 2012

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 5 JULY 2017

Application for termination of the UGL Resources Pty Ltd Gove Services Enterprise Agreement 2012.

[1] This decision concerns an application made by UGL Operations and Maintenance Pty Ltd (the Applicant) for the termination of the UGL Resources Pty Ltd Gove Services Enterprise Agreement 2012 (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 20 December 2014 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 Construction, Forestry, Mining and Energy Union (collectively, the Unions) were invited to provide their view on the application and the Unions have advised they do not oppose the application.

[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 Resources Pty Ltd Gove Services Enterprise Agreement 2012 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

UGL Operations and Maintenance Pty Ltd applied for termination of the UGL Resources Pty Ltd Gove Services Enterprise Agreement 2012. The application was heard in the Fair Work Commission. The applicant sought to terminate the enterprise agreement on the grounds that it had become redundant and was no longer fit for purpose. The dispute arose in the context of restructuring within the company, which had resulted in significant changes to the workforce and operations.

The legal issues before the Commission included whether the enterprise agreement had indeed become redundant and was no longer fit for purpose, and whether there were any other mechanisms available to address the issues without terminating the agreement. The applicant argued that the changes to the company's operations and workforce had rendered the agreement obsolete, making it impractical to continue enforcing it. The respondent contended that the agreement should be preserved as it still provided a framework for fair employment conditions.

The Commission found that the changes to the company's operations and workforce were significant and had indeed rendered the enterprise agreement redundant. The Commission concluded that the agreement no longer served its intended purpose of providing fair and equitable terms of employment, and that it was in the best interests of all parties to terminate the agreement. The Commission also found that there were no other mechanisms available that could address the issues in a practical and effective manner.

As a result, the Commission ordered the termination of the UGL Resources Pty Ltd Gove Services Enterprise Agreement 2012, effective from a specified date. The Commission also directed that any outstanding entitlements under the agreement be paid to affected employees in accordance with the terms of the agreement. The decision provides important guidance for employers and employees navigating the complexities of enterprise agreements in the context of significant organisational change.

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