UGL Engineering Pty Ltd

[2024] FWCA 2518

[2024] FWCA 2518

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UGL Engineering Pty Ltd

(AG2024/2348)

UGL CLEANCO ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 18 JULY 2024

Application for approval of the UGL CleanCo Enterprise Agreement 2024

1. UGL Engineering Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the UGL CleanCo Enterprise Agreement 2024 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. Five employees were covered by the Agreement at the time of the vote.[1] Of those five, all were employed on a casual basis.[2] Ultimately, all employees cast a valid vote with all voting to approve the Agreement.[3] The inclusion of casual employees in the voting cohort gave rise to a concern that the Agreement may not have been made by a majority of ‘employees employed at the time’ who cast a valid vote (see s 182(1) of the Act).

1. It is uncontroversial that enterprise agreements were intended by the legislature to be capable of covering casual employees. However, a difficulty that has arisen is ascertaining when a casual employee ought to be regarded as an employee ‘employed at the time’ within the meaning of s 181(1). In relation to permanent employees, it is of course a relatively straightforward exercise.

1. In the decision of St John of God Health Care Inc (St John),[4] I traversed the authorities that have considered the phrase ‘employed at that time’. I do not intend to repeat here what was said in St John because based on the submissions and timesheets submitted by the Applicant, I am satisfied that all employees worked shifts during the access period (11 June 2024 to 19 June 2024). Accordingly, I am satisfied that the Agreement was made in accordance with s 182(1).

1. The Applicant 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.

1. In compliance with s 190(4) of the Act, the employee bargaining representatives’ views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187, 188, and 190 of the Act as are relevant to this application for approval have been met.

1. The Agreement was approved on 18 July 2024 and, in accordance with s 54, will operate from 25 July 2024. The nominal expiry date of the Agreement is 30 April 2027.

DEPUTY PRESIDENT

Annexure A

[1] Form F17B – Employer’s declaration in support of an application for approval of a single-enterprise agreement (other than a greenfields agreement) – notification time on or after 6 June 2023, question 29.

[2] Ibid question 6.

[3] Ibid question 29.

[4] [2023] FWCA 87.

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