UGL Operations & Maintenance Pty Ltd

[2022] FWCA 397

[2022] FWCA 397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225 - Application for termination of an enterprise agreement after its nominal expiry date

UGL Operations & Maintenance Pty Ltd

(AG2022/264)

Building, metal and civil construction industries
COMMISSIONER SPENCER	BRISBANE, 9 FEBRUARY 2022

Application for termination of the UGL Operations & Maintenance Pty Ltd Upstream Construction Enterprise Agreement 2014.

1. An application pursuant to s.225 of the Fair Work Act 2009 (the Act) was made by UGL Operations & Maintenance Pty Ltd (the Applicant) to terminate the UGL Operations & Maintenance Pty Ltd Upstream Construction Enterprise Agreement 2014 (the Agreement).

1. The Agreement is an Enterprise Agreement that has passed its nominal expiry date. The nominal expiry date for the Agreement was 26 October 2015.

1. Sections 225 and 226 of the Act provide:

“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.”

1. Ms Stephanie Evans, Industrial Relations Advisor for the Applicant, filed a Form 24C Statutory Declaration in support of the application to terminate the Agreement. Ms Evans stated that the application to terminate the Agreement was made on the basis that the Agreement had passed it nominal expiry date over 6 years ago, and that no employees were currently employed under the terms of the Agreement, nor was there any intention by the Applicant to engage any employees under the Agreement in the future.

1. Ms Evans stated that as are no employees currently engaged or intended to be engaged under the Agreement, the termination of the Agreement will have no effect on any of the Applicant’s various employees and their bargaining representatives, since the expiry of this Agreement. Ms Evans further stated that the termination of the Agreement would achieve one less historical and expired Agreement for the Applicant to monitor and administer.

1. It was submitted on behalf of the Applicant, that the termination of the Agreement would not have any effect on any employees, as there are no employees covered by the Agreement, nor will there be in future.

1. The views of the Electrical Trades Union (ETU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being parties to the Agreement, were sought in relation to the application to terminate the Agreement. Both organisations confirmed that they supported the application.

1. Taking into account the information provided in response to the matters in s.226 of the Act, I consider it appropriate to terminate the Agreement on the basis that the material satisfies the legislative requirements. The application is therefore granted, and the Agreement is terminated. The termination of the Agreement will take effect from 9 February 2022.

1. I Order accordingly.

COMMISSIONER

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