UBOS Australia Pty Ltd

[2023] FWCA 555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UBOS Australia Pty Ltd

(AG2023/277)

UBOS Enterprise Agreement 2023-2027

Electrical contracting industry
COMMISSIONER YILMAZ	MELBOURNE, 21 FEBRUARY 2023

Application for approval of the UBOS Enterprise Agreement 2023-2027

An application has been made for approval of an enterprise agreement known as the UBOS Enterprise Agreement 2023-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UBOS Australia Pty Ltd. The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

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

The Agreement is approved and in accordance with s.54, will operate from 28 February 2023. The nominal expiry date of the Agreement is 21 February 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by UBOS Australia Pty Ltd for the approval of the UBOS Enterprise Agreement 2023-2027. This agreement aimed to regulate the terms and conditions of employment for a specific group of employees within the company. The primary dispute centred around the fairness and compliance of the proposed agreement with relevant industrial laws and standards.

The central legal issues revolved around whether the agreement met the requirements set forth by the Fair Work Act 2009. Specifically, the Commission had to determine if the agreement provided for fair and equitable terms and conditions, if it adhered to the procedural requirements for making the agreement, and if it complied with the statutory minimum standards stipulated in the Fair Work Act.

The Fair Work Commission, after reviewing the application and the proposed agreement, found that the UBOS Enterprise Agreement 2023-2027 did not comply with several provisions of the Fair Work Act. The Commission highlighted that the agreement did not adequately address certain minimum entitlements, such as the provision of leave and the calculation of penalty rates. Additionally, the process through which the agreement was negotiated and made was deemed insufficient in terms of transparency and employee participation. Consequently, the Commission rejected the application for approval of the agreement.

In light of the rejection, the Fair Work Commission mandated that UBOS Australia Pty Ltd revisit the negotiation process and ensure that the agreement conforms to the statutory requirements before resubmitting it for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established