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
(AG2017/278)

UNITED GROUP RESOURCES PTY LTD (ENGINEERING, INSTALLATION AND MAINTENANCE SERVICES) WORKPLACE AGREEMENT 2009

Manufacturing and associated industries
DEPUTY PRESIDENT BINET	PERTH, 13 FEBRUARY 2017

Application for termination of the United Group Resources Pty Ltd (Engineering, Installation and Maintenance Services) Workplace Agreement 2009.

[1] UGL Operations and Maintenance Pty Ltd (UGL)made an application (Application) to the Fair Work Commission (FWC) to terminate the United Group Resources Pty Ltd (Engineering, Installation and Maintenance Services) Workplace Agreement 2009 (Agreement).

[2] The Agreement has a nominal expiry date of 29 May 2014 in accordance with clause 3(1) of the Agreement, being 5 days after the date on the notice from the Workplace Authority Director advising that the Agreement has passed the No Disadvantage Test.

[3] UGL is the employer covered by the Agreement.

[4] There are no employee organisations covered by the Agreement.

[5] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[6] Section 226 of the FW Act states:

“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.”

[7] UGL filed a Statutory Declaration of Mr Damien King, Industrial Relations Manager (King Statutory Declaration), which submits that the termination of the Agreement is not contrary to the public interest as:

(a) no employees are currently employed by UGL under the Agreement; and
(b) UGL has no intention to engage employees under this Agreement as the work that was previously undertaken under this Agreement is no longer undertaken by UGL.

[8] The King Statutory Declaration further stated that the termination of the Agreement will have no effect on any party to the Agreement for the above reasons.

[9] In the absence of any evidence to the contrary, I am satisfied that termination of the Agreement is not contrary to the public interest.

[10] Based on the material that is before me, I am satisfied that the termination of the Agreement would not have any adverse effect on anyone covered by the Agreement.

[11] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

[12] Accordingly, the Agreementis terminated. The termination will come into effect on and from the date of this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the applicant UGL Operations and Maintenance Pty Ltd sought the termination of the United Group Resources Pty Ltd (Engineering, Installation and Maintenance Services) Workplace Agreement 2009. The application was based on the assertion that the agreement had become redundant and was no longer suitable for the current operational context. The Fair Work Commission was required to determine whether the workplace agreement was, in fact, redundant and should be terminated. Additionally, the Commission needed to assess whether any provisions of the agreement could be preserved under the provisions of section 232 of the Fair Work Act 2009.

The Commission began by examining the content and provisions of the existing workplace agreement to ascertain its relevance and applicability to the current circumstances of the parties. It considered whether the agreement still served a purpose in governing the terms and conditions of employment or if it had outlived its utility. The Commission also evaluated whether any specific clauses within the agreement could be retained to protect the rights and interests of the employees. After thorough analysis, the Commission concluded that the workplace agreement had indeed become redundant and that there were no provisions that needed to be preserved. The decision was based on the findings that the agreement no longer aligned with the current operational needs and did not adequately address the current employment conditions.

Accordingly, the Commission decided to terminate the workplace agreement in its entirety. The decision was made to ensure that the terms and conditions of employment were governed by the relevant modern awards and enterprise agreements that better reflected the current industrial landscape. The Fair Work Commission’s decision provided clarity and a pathway for the parties to align their employment terms with contemporary standards and practices.

UGL Operations and Maintenance Pty Ltd

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established