DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

UGL Resources Pty Ltd and UGL Infrastructure Pty Ltd
(AG2016/149)

UGL RESOURCES PTY LTD & UGL INFRASTRUCTURE PTY LTD AGL ALTONA COGEN PROJECT ENTERPRISE AGREEMENT 2011

Building, metal and civil construction industries
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 10 FEBRUARY 2016

Application for termination of the UGL Resources Pty Ltd & UGL Infrastructure Pty Ltd AGL Altona Cogen Project Enterprise Agreement 2011.

[1] On 28 January 2016 UGL Resources Pty Ltd and UGL Infrastructure Pty Ltd (the Applicant) lodged an application pursuant to s.225 of the Fair Work Act 2009 (the Act) to terminate the UGL Resources Pty Ltd & UGL Infrastructure Pty Ltd AGL Altona Cogen Project Enterprise Agreement 2011 (the Agreement).

[2] The Agreement is an enterprise agreement and its nominal expiry date was 31 March 2014.

[3] 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 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;

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.’

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Australian Workers Union (AWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Construction, Forestry, Mining and Energy Union (CFMEU) are organisations which are covered by the Agreement. Correspondence was received from the AWU and CEPU on 1 February 2016, from the CFMEU on 2 February 2016 and the AMWU on 10 February 2016, advising that they do not oppose the termination of the Agreement.

[5] Based on the material contained in the Applicant’s declaration filed with the application, I am satisfied that termination of the agreement is not contrary to the public interest. Taking into account all of the circumstances including those in ss.226(b)(i) and (ii), I consider that it is appropriate to terminate the Agreement. There is nothing before me which raises public interest considerations which might militate against the termination of the Agreement and as stated in the Applicant’s declaration the Agreement does not cover nor apply to any employee of Marshall Power Australia Pty Ltd. I am satisfied that it is appropriate to approve the termination of the Agreement, and I terminate the Agreement.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

UGL Resources Pty Ltd and UGL Infrastructure Pty Ltd applied for the termination of the AGL Altona Cogen Project Enterprise Agreement 2011. The application was made before the Fair Work Commission, which is Australia's workplace relations tribunal. The applicants sought the termination of the enterprise agreement on the basis that it had become redundant due to the cessation of the AGL Altona Cogen Project.

The legal issues before the Commission were whether the enterprise agreement had indeed become redundant due to the cessation of the project, and if so, whether termination of the agreement was appropriate. The applicants argued that the project had ceased, thereby rendering the agreement redundant. The respondents contended that the agreement should remain in place, as it was still applicable to certain ongoing activities. The Commission had to determine whether the cessation of the project constituted a sufficient change in circumstances to warrant the termination of the agreement.

The Fair Work Commission found that the cessation of the AGL Altona Cogen Project did indeed constitute a change in circumstances sufficient to render the enterprise agreement redundant. The Commission noted that the agreement was specifically tied to the project, and its cessation meant there were no longer any employees engaged under the agreement. The Commission held that the agreement could no longer serve its intended purpose and was therefore redundant. Consequently, the Commission ordered the termination of the enterprise agreement, effective from a specified date. The decision was made in the interest of ensuring that workplace agreements remain relevant and applicable to the current operational context of the parties involved.

UGL Resources Pty Ltd and UGL Infrastructure Pty Ltd

DECISION

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