UGL Operations & Maintenance Pty Ltd - [2022] FWCA 1647

[2022] FWCA 1647

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

UGL Operations & Maintenance Pty Ltd

(AG2022/728)

Oil and gas industry
DEPUTY PRESIDENT BINET	PERTH, 19 MAY 2022

Application for termination of the UGL Operations & Maintenance Pty Ltd BP Refinery (Kwinana) Site Maintenance and Modification Enterprise Agreement 2018

UGL Operations and Maintenance Pty Ltd (UGL) has made an application (Application) to the Fair Work Commission (FWC) to terminate the UGL Operations & Maintenance Pty Ltd BP Refinery (Kwinana) Site Maintenance and Modification Enterprise Agreement 2018 (Agreement) pursuant to section 225 of the Fair Work Act 2009 (Cth) (FW Act).

The Agreement was approved by Commissioner Cirkovic pursuant to section 185 of the FW Act, on 1 April 2019 and, commenced operation on 8 April 2019. The Agreement had a nominal expiry date of 28 February 2022.

The parties to the Agreement are UGL and employees employed in classifications specified in Clause 17 of the Agreement who are employed to undertake maintenance and modification work (demolition and modification included) to refinery plant, and brownfields projects and excludes construction work for which separate conditions apply (Employees).

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) are covered by the Agreement.

In support of the Application, UGL filed a statutory declaration by Ms Stephanie Evans, Industrial Relations Advisor (Evans Declaration).

On 24 March 2022, directions were issued with respect to the Application (Directions). The Directions required UGL to file an outline of submissions in support of the Application and any evidence on which UGL sought to rely. The Directions required the AMWU to file an outline of submissions in response to the Application and any evidence on which the AMWU sought to rely.

The parties were invited to make oral submissions in relation to the Application. Both parties confirmed that they did not seek to be heard and were content for the Application to be determined on the papers.

Legislation

Subdivision D of Division 7 of Part 2-4 of the FW Act sets out the mechanism by which an enterprise agreement may be terminated after the agreement has passed its nominal expiry date.

Section 225 of the FW Act provides that:

“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.”

As the Agreement has passed its nominal expiry date and UGL is an employer covered by the Agreement, I find that UGL has standing to make the Application pursuant to section 225(a) of the FW Act.

Section 226 of the FW Act states:

“226 When the FWC must terminate an enterprise agreement

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading UGL Operations & Maintenance Pty Ltd

Details

AGLC: UGL Operations & Maintenance Pty Ltd [2022] FWCA 1647
Case: [2022] FWCA 1647
Decision Date: 19 MAY 2022

CaseChat Overview and Summary

The Fair Work Commission considered an application by UGL Operations and Maintenance Pty Ltd (UGL) to terminate the UGL Operations and Maintenance Pty Ltd BP Refinery (Kwinana) Site Maintenance and Modification Enterprise Agreement 2018 (Agreement). The Agreement was approved by Commissioner Cirkovic on 1 April 2019 and commenced operation on 8 April 2019. The Agreement had a nominal expiry date of 28 February 2022. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) are covered by the Agreement. UGL made an application to the Fair Work Commission to terminate the Agreement, claiming it was not contrary to the public interest and was appropriate to do so. The AMWU and UGL both agreed that the Agreement should be terminated.

The Fair Work Commission considered whether it was contrary to the public interest to terminate the Agreement, taking into account the views of the employees, employer and employee organisation covered by the agreement and the circumstances of those parties. The Commission considered that the Agreement had passed its nominal expiry date, there have been no employees employed by UGL under the Agreement since August 2019 and UGL has no intention to engage any employees under the Agreement as the work that was previously undertaken under this Agreement is no longer undertaken. The Commission was satisfied that it was not contrary to the public interest to terminate the Agreement.

The Fair Work Commission then considered whether it was appropriate to terminate the Agreement, taking into account all the circumstances. The Commission was satisfied that the views of UGL and the AMWU that the Agreement should be terminated were valid, and that it was appropriate to terminate the Agreement. The termination of the Agreement is to take effect on and from the date of this Decision.

The Fair Work Commission terminated the Agreement, and an Order to this effect will be issued in conjunction with this Decision.

Orders