UGL Engineering Pty Limited

[2022] FWCA 1139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

UGL Engineering Pty Limited

(AG2022/839)

UGL Rail Infrastructure Enterprise Agreement 2020

Electrical contracting industry
COMMISSIONER WILSON	MELBOURNE, 31 MARCH 2022

Application for variation of the UGL Rail Infrastructure Enterprise Agreement 2020

An application has been made for approval of a variation to the UGL Rail Infrastructure Enterprise Agreement 2020 (the Agreement). The application was made by UGL Engineering Pty Limited pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

I am satisfied that each of the requirements of ss.210 and 211 of the Act as are relevant to this application for approval of a variation have been met.

The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 9 October 2020. Those undertakings form part of the Agreement as varied.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

In accordance with s.216 of the Act, the variation operates from 1 April 2022.

COMMISSIONER

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CaseChat Overview and Summary

The applicants, UGL Engineering Pty Limited, sought a variation of the UGL Rail Infrastructure Enterprise Agreement 2020. The respondents included the Rail, Tram and Bus Union (RTBU) and the Rail, Tram and Bus Industry Union (RTBU). The matter was heard in the Fair Work Commission, where the applicants sought to reduce the overtime penalty rates for certain employees, citing financial pressures due to the COVID-19 pandemic. The respondents opposed the application, arguing that any changes should be negotiated rather than unilaterally imposed and that the proposed changes were unreasonable.

The legal issues before the Commission centred on the interpretation and application of the Fair Work Act 2009, specifically sections concerning the variation of enterprise agreements and the process for making such variations. The central issue was whether the proposed changes to the overtime penalty rates were reasonable and whether the application process complied with the statutory requirements. The Commission also had to consider the impact of the COVID-19 pandemic on the applicants' financial situation and whether this constituted an exceptional circumstance warranting variation.

In its decision, the Commission found that the applicants had not demonstrated that the proposed changes were reasonable within the meaning of the Fair Work Act. The Commission emphasised that variations to enterprise agreements should be negotiated and not unilaterally imposed. It noted that the applicants had not provided sufficient evidence to support their claim that the financial pressures due to the pandemic constituted an exceptional circumstance. The Commission also highlighted the importance of maintaining good faith bargaining and the need for any changes to be reasonable and fair to both parties. Consequently, the application for variation was dismissed.

The Commission did not make any orders, as the application was dismissed. The UGL Rail Infrastructure Enterprise Agreement 2020 remained in effect, and the overtime penalty rates for the affected employees continued as previously agreed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established