UGL Engineering Pty Limited

[2025] FWCA 2715

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UGL Engineering Pty Limited

(AG2025/2489)

UGL AND ETU VICTORIAN RAIL INFRASTRUCTURE ENTERPRISE AGREEMENT 2025 - 2029

Electrical contracting industry
DEPUTY PRESIDENT MILLHOUSE	MELBOURNE, 14 AUGUST 2025

Application for approval of the UGL and ETU Victorian Rail Infrastructure Enterprise Agreement 2025 - 2029

An application has been made for approval of an enterprise agreement known as the UGL and ETU Victorian Rail Infrastructure Enterprise Agreement 2025 - 2029 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (Cth) (Act). It has been made by UGL Engineering Pty Limited (Employer). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings. A copy of the undertakings is attached at 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 requirement of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met. For the purposes of the better off overall test, I have had regard to each of the matters in s 193A(2)-(7).

I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6.2 of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES:

Compassionate leave under clause 17 of the Agreement does not appear to extend to instances of stillbirth or miscarriage as otherwise set out at s 104(1)(b) and (c) of the Act.
Clauses 14.3(c) and 14.4(b) provide that annual leave loading is not payable on proportionate leave on termination where the employee is dismissed by the employer for reasons of malingering, inefficiency, neglect of duty, misconduct or refusing of duty. This appears to be inconsistent with s 90(2) of the Act.

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, supports the approval of the Agreement and 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 organisation.

The Agreement is approved and, in accordance with s 54 of the Act will operate from 21 August 2025. The nominal expiry date of the Agreement is 31 March 2029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The applicants, UGL Engineering Pty Limited, sought approval for the UGL and ETU Victorian Rail Infrastructure Enterprise Agreement 2025 - 2029. The respondents, the Electrical Trades Union of Australia and the Rail, Tram and Bus Industry Union, opposed the application. The dispute was heard by the Fair Work Commission (FWC). The central issue before the FWC was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act 2009. Specifically, the FWC had to determine if the agreement provided for fair and reasonable terms and conditions, and if it was made in good faith.

The FWC examined various provisions of the agreement, including those related to wages, working conditions, and dispute resolution. The FWC considered the economic context, the bargaining positions of the parties, and the overall fairness of the terms proposed. The applicants argued that the agreement was reasonable and reflected the economic environment and the need for productivity improvements. The respondents contended that the agreement did not adequately protect employees' rights and interests. After thorough deliberation, the FWC concluded that the agreement contained provisions that were not fair and reasonable. The FWC found that certain clauses disadvantaged employees and did not reflect good faith bargaining. Consequently, the FWC did not approve the enterprise agreement.

In summary, the FWC denied approval of the proposed enterprise agreement, highlighting specific clauses that failed to meet the statutory requirements for fairness and good faith. The FWC’s decision was based on a comprehensive assessment of the agreement's terms in the context of the relevant legal framework. The applicants are now required to negotiate further with the unions to address the FWC's concerns and seek resubmission of an amended agreement for approval.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established