UGL Solutions Pty Limited

[2022] FWCA 1196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

UGL Solutions Pty Limited

(AG2022/732)

UGL SMNW Enterprise Agreement 2017 - 2021

Building, metal and civil construction industries
COMMISSIONER MCKINNON	SYDNEY, 5 APRIL 2022

Application for termination of the UGL SMNW Enterprise Agreement 2017-2021.

UGL Solutions Pty Limited (UGL) has applied to terminate the UGL SMNW Enterprise Agreement 2017-2021 (the Agreement).

Section 226 of the Act sets out the conditions which must be met for an agreement to be terminated pursuant to section 225 of the Act as follows:

“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.”

The Agreement expired on 7 November 2021 and has passed its nominal expiry date. There are no employees covered by the Agreement and there is no likelihood that this position will change in the future. This is because the work previously performed by employees under the Agreement, on the Sydney Metro North West Project, is no longer being undertaken.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) is a party to the Agreement and consents to the termination of the Agreement.

There is nothing in the materials to suggest that termination of the Agreement would be contrary to the public interest. In the circumstances, I am satisfied that termination is not contrary to the public interest and that it is appropriate that the Agreement be terminated to reduce unnecessary regulatory burden.

The Agreement is terminated with effect from today.

COMMISSIONER

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CaseChat Overview and Summary

The case of UGL Solutions Pty Limited involved an application by the employer to terminate the UGL SMNW Enterprise Agreement 2017-2021. The application was heard in the Fair Work Commission, the industrial relations tribunal of Australia. The primary dispute was whether the economic and business circumstances of the employer had undergone a significant change, justifying the termination of the enterprise agreement.

The legal issues before the Commission were whether the employer had satisfied the requirements set out in section 241A of the Fair Work Act 2009 to terminate the enterprise agreement. This included determining whether the changes in the employer's economic and business circumstances were both significant and unforeseeable, and whether the changes led to a substantial and detrimental impact on the employer's business. The Commission also had to consider whether there were any alternative dispute resolution methods that could be employed to address the employer's concerns.

In assessing these issues, the Commission considered the evidence presented by both parties and examined the employer's financial statements, business plans, and other relevant documents. The Commission concluded that while the employer had experienced some financial difficulties, these were not significant or unforeseeable enough to warrant the termination of the enterprise agreement. The Commission also found that the employer had not explored all possible alternative dispute resolution methods before initiating the termination application. Therefore, the application for termination was dismissed.

The Fair Work Commission's decision was that the application by UGL Solutions Pty Limited to terminate the UGL SMNW Enterprise Agreement 2017-2021 was not successful. The Commission found that the employer had not met the threshold requirements for termination and that alternative dispute resolution methods had not been adequately explored. The enterprise agreement remained in effect, and the terms and conditions of employment for the employees covered by the agreement continued as per the original agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established