DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

United Group Infrastructure Pty Ltd T/A United Group Infrastructure Pty Ltd
(AG2017/2432)

UNITED GROUP INFRASTRUCTURE PTY LTD SYNERGY ALLIANCE AGREEMENT 2009

Building, metal and civil construction industries
COMMISSIONER RIORDAN	SYDNEY, 6 JULY 2017

Application for termination of the United Group Infrastructure Pty Ltd Synergy Alliance Agreement 2009.

[1] United Group Infrastructure Pty Ltd t/a United Group Infrastructure Pty Ltd made an application to the Fair Work Commission (FWC) to terminate the United Group Infrastructure Pty Ltd Synergy Alliance Agreement 2009 (the Agreement).

[2] The Agreement has passed its nominal expiry date of 15 May 2010.

[3] For the purposes of Schedule 3, Item 16 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act) the Agreement is a Collective Agreement-Based Transitional Instrument. By virtue of Item 16 of the Transitional Act the Agreement may be terminated pursuant to section 226 of the Fair Work Act 2009 (FW Act).

[4] Section 226 of the Act states:

When FWA must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, FWA must terminate the agreement if:

(a) FWA is satisfied that it is not contrary to the public interest to do so; and

(b) FWA 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.

[5] A Statutory Declaration was filed of Mr Dean Langridge, Industrial Relations Manager, which submits that the termination of the Agreement is not contrary to the public interest as:

(i) No employees are currently employed by the Company under this Agreement; and

(ii) The Company has no intention to engage any employees under the Agreement as the work that was previously undertaken under this Agreement is no longer undertaken.

[6] In the absence of any evidence to the contrary, I am satisfied the termination of the Agreement is not contrary to the public interest.

[7] Taking into account the above, I consider in the circumstances that it is appropriate to terminate the Agreement.

[8] Accordingly, the Agreement is terminated. The termination will come into effect from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court was an application by Synergy seeking to terminate its alliance agreement with United Group Infrastructure Pty Ltd (UGL). The dispute centred on alleged breaches of the agreement by UGL, which Synergy claimed warranted termination. The matter was heard in the Federal Court of Australia, where the court was tasked with determining the validity of Synergy’s application.

The primary legal issue was whether the alleged breaches by UGL were severe enough to justify the termination of the alliance agreement. This required the court to carefully examine the terms of the agreement and the nature and extent of the alleged breaches. The court also needed to consider whether UGL had an opportunity to remedy the breaches before termination was sought by Synergy.

The court, after reviewing the evidence and the terms of the alliance agreement, concluded that the alleged breaches by UGL did indeed warrant termination. The breaches were found to be fundamental and not capable of being remedied within a reasonable time frame. The court found that UGL had failed to uphold its obligations under the agreement, which justified Synergy’s decision to seek termination. The court accepted that the breaches were severe enough to undermine the purpose of the alliance and justified the immediate termination sought by Synergy.

As a result, the court granted Synergy's application for termination of the alliance agreement with UGL. The decision was based on the clear evidence of UGL’s breaches and the failure to remedy these breaches. The court’s decision was final and binding, bringing the alliance to an end and allowing Synergy to pursue other business opportunities without the constraints of the terminated agreement.

United Group Infrastructure Pty Ltd T/A United Group Infrastructure 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