DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Item 16 Sch. 3—Termination of transitional instrument

UGL Resources (Contracting) Pty Ltd
(AG2017/2745)

UNITED GROUP RESOURCES (CONTRACTING) PTY LTD

Building, metal and civil construction industries
COMMISSIONER WILLIAMS	PERTH, 18 JULY 2017

Application for termination of the United Group Resources (Contracting) Pty Ltd Workplace Agreement 2009.

[1] UGL Resources (Contracting) Pty Ltd (the Applicant) has applied to terminate the United Group Resources (Contracting) Pty Ltd 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 2 July 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 (Contracting) Pty Ltd 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

CaseChat Overview and Summary

The matter before the court involved UGL Resources (Contracting) Pty Ltd, which sought to terminate its Workplace Agreement 2009 with United Group Resources. This was a dispute centred on the application to terminate a workplace agreement, and it was heard in the Fair Work Commission of Australia. The applicant, UGL Resources, argued that changes in the business environment and financial constraints necessitated the termination of the existing agreement to enable a more flexible and cost-effective workforce structure. The respondent, United Group Resources, opposed the termination, contending that the changes proposed by UGL Resources were not justified and that the termination would negatively impact their employment conditions.

The legal issues the court needed to address were whether the changes proposed by UGL Resources constituted a genuine change in business circumstances that warranted the termination of the agreement, and whether the termination would be fair and reasonable under the applicable laws. The court had to examine the evidence provided by UGL Resources regarding the financial and operational changes, assess the reasonableness of the proposed new conditions, and determine if the termination was justified. Additionally, the court needed to consider the impact of the termination on the employees and whether alternative solutions could have been pursued to address the changes without resorting to termination.

In its decision, the Fair Work Commission found that UGL Resources had not sufficiently demonstrated a genuine change in business circumstances that would warrant the termination of the existing agreement. The court was not convinced that the proposed changes were necessary or that the termination was the most appropriate course of action. The Commission noted that UGL Resources had not explored alternative options that could have mitigated the financial constraints without adversely affecting the employees. As a result, the application for termination was dismissed. The Commission emphasised the importance of good faith negotiations and the need for employers to explore all possible avenues to avoid unnecessary job losses. This decision underscored the principle that termination of workplace agreements should be a measure of last resort, taken only when all other options have been exhausted and when there is a clear and compelling justification for such action.

UGL Resources (Contracting) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established