Application by UGL Rail Services Pty Limited

[2022] FWCA 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Application by UGL Rail Services Pty Limited

(AG2022/3835)

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 5 OCTOBER 2022

Application for approval of the UGL Rail APMC Enterprise Agreement 2022

UGL Rail Services Pty Limited (the Employer) has applied for approval of an enterprise agreement known as the UGL Rail APMC Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Australian Rail Tram & Bus Industry Union SA/NT (RTBU) regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views.

I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

The RTBU being a bargaining representative for the Agreement has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers the RTBU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 October 2022. The nominal expiry date of the Agreement is 1 July 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

ANNEXURE A

CaseChat Overview and Summary

In the matter of UGL Rail Services Pty Limited, the company applied for the approval of a single-enterprise agreement, the UGL Rail APMC Enterprise Agreement 2022. The application was made under section 185 of the Fair Work Act 2009. The Fair Work Commission raised concerns about the agreement, leading to the employer providing written undertakings to address these concerns. The Australian Rail Tram & Bus Industry Union SA/NT (RTBU) was also consulted regarding the undertakings.

The key legal issues in this case revolved around whether the agreement met the requirements set forth in sections 186, 187, 188, and 190 of the Fair Work Act. Specifically, the court needed to determine if the agreement was fairly chosen, if the employer's undertakings would cause financial detriment to any employee, and if the undertakings would result in substantial changes to the agreement. Additionally, the court had to consider whether the agreement covered all employees or if it was fairly chosen in accordance with section 186(3) and (3A) of the Act.

The Commissioner was satisfied that the employer's undertakings would not cause financial detriment to any employee and would not result in substantial changes to the agreement. Furthermore, the Commissioner concluded that the agreement met all the requirements of the relevant sections of the Act. Given that the RTBU, a bargaining representative, wanted the agreement to cover its members, the Commissioner approved the agreement, noting that it would operate from 12 October 2022 with a nominal expiry date of 1 July 2025. The employer's undertakings were also noted as terms of the agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established