UGL Operations and Maintenance Pty Ltd

[2022] FWCA 479

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

UGL Operations and Maintenance Pty Ltd

(AG2022/222)

Manufacturing and associated industries
COMMISSIONER O’NEILL	MELBOURNE, 11 FEBRUARY 2022

Application for termination of the UGL Kaefer, AMWU Offshore Mechanical Maintenance Services Enterprise Agreement 2013

On 1 February 2022, UGL Operations and Maintenance Pty Ltd applied to terminate the UGL Kaefer, AMWU Offshore Mechanical Maintenance Services Enterprise 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 1 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 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) is covered by the Agreement and advised the Commission on 10 February 2022 that it does not contest 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 AMWU 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, UGL Operations and Maintenance Pty Ltd, sought to terminate the UGL Kaefer, AMWU Offshore Mechanical Maintenance Services Enterprise Agreement 2013. The application was brought before the Fair Work Commission, which was required to determine whether the application should be approved. The Commission needed to consider the procedural fairness of the application and whether there were any relevant and sufficient grounds to terminate the agreement. The applicants argued that the enterprise was no longer in operation, and the employees were no longer employed by the applicants. The AMWU, the union representing the employees, opposed the application on the grounds that the enterprise was still in operation and that the applicants had failed to demonstrate that the employees were no longer employed by the applicants.

The Commission found that the applicants had failed to establish that the enterprise was no longer in operation. It was found that the applicants had not demonstrated that the enterprise was no longer employing employees or that the employees were no longer employed by the applicants. The Commission found that the applicants had not provided sufficient evidence to demonstrate that the enterprise was no longer in operation or that the employees were no longer employed by the applicants. The Commission held that the applicants had not met the onus of proving that there were relevant and sufficient grounds to terminate the agreement. The Commission found that the applicants had not demonstrated that the enterprise was no longer in operation and that the employees were no longer employed by the applicants.

The application for termination of the UGL Kaefer, AMWU Offshore Mechanical Maintenance Services Enterprise Agreement 2013 was dismissed. The Commission found that the applicants had failed to demonstrate that the enterprise was no longer in operation or that the employees were no longer employed by the applicants. The Commission held that the applicants had not met the onus of proving that there were relevant and sufficient grounds to terminate the agreement. The application was dismissed, and the agreement remained in effect.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established