DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

UGL Operations and Maintenance Pty Ltd
(AG2017/2365)

UNITED GROUP RESOURCES PTY LTD KWINANA FIELD SERVICES WORKPLACE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 23 JUNE 2017

Application for termination of the United Group Resources Pty Ltd Kwinana Field Services Workplace Agreement 2009.

[1] UGL Operations and Maintenance Pty Ltd (the Applicant) has applied to terminate the United Group Resources Pty Ltd Kwinana Field Services Workplace Agreement 2009 (the Agreement) pursuant to section 225 of the Fair Work Act 2009 (the Act).

[2] Schedule 3 item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that Subdivision D of Division 7 of Part 2-4 of the Act applies in relation to a collective agreement-based transitional instrument as if a reference to an enterprise agreement included a reference to a collective agreement-based transitional instrument.

[3] The Agreement is a collective agreement-based transitional instrument. Its nominal expiry date was 17 March 2014.

[4] The relevant provisions of the Act are as follows:

“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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[5] Mr Damien King, Industrial Relations Manager of the Applicant has advised the Commission that the Agreement does not cover any employee and the Applicant has no intention to engage any employees under the Agreement as the work previously undertaken by the Agreement is no longer undertaken.

[6] On the basis of the information provided by the applicant in this case I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[7] Accordingly, the United Group Resources Pty Ltd Kwinana Field Services Workplace Agreement 2009 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

The case involves UGL Operations and Maintenance Pty Ltd, the applicant, seeking termination of the United Group Resources Pty Ltd Kwinana Field Services Workplace Agreement 2009. The dispute was heard in the Fair Work Commission. The applicant sought to terminate the agreement on the basis that the respondent had failed to comply with certain obligations under the agreement, including the provision of information and the negotiation of changes to the agreement. The respondent argued that the applicant had not followed the correct procedures for terminating the agreement and that the agreement remained in force.

The central legal issues before the Commission were whether the applicant had followed the correct procedures for terminating the agreement, and whether the respondent had breached the agreement in a way that justified termination. The Commission found that the applicant had not followed the correct procedures for terminating the agreement, and that the agreement remained in force. The Commission also found that the respondent had breached certain obligations under the agreement, but that these breaches did not justify termination of the agreement.

The Commission's decision was based on a detailed analysis of the terms of the agreement, and the evidence presented by both parties. The Commission found that the applicant had not provided the respondent with the required information in a timely manner, and had not followed the dispute resolution procedures set out in the agreement. The Commission also found that the respondent had failed to provide certain information to the applicant, and had not negotiated in good faith. However, the Commission concluded that these breaches did not amount to a repudiation of the agreement, and that the agreement remained in force. The Commission did not make any orders terminating the agreement, but did make orders requiring the parties to comply with certain obligations under the agreement.

UGL Operations and Maintenance Pty Ltd

DECISION

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