UGL Engineering Pty Ltd
[2023] FWCA 3190
•3 OCTOBER 2023
| [2023] FWCA 3190 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
UGL Engineering Pty Ltd
(AG2023/3277)
UGL STANWELL CORPORATION ENTERPRISE AGREEMENT 2023
| Electrical power industry | |
| DEPUTY PRESIDENT DOBSON | BRISBANE, 3 OCTOBER 2023 |
Application for approval of the UGL Stanwell Corporation Enterprise Agreement 2023
An application has been made for approval of an enterprise agreement known as the UGL Stanwell Corporation Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UGL Engineering Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023.
Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. Question 18 of the Form F17A provides that the notification time for the Agreement was 27 March 2023.
Under transitional arrangements, amendments made by Part 16 of Schedule 1 to the Amending Act in relation to the better off overall test requirements for agreement approval applications apply where the agreement was made on or after 6 June 2023. The better off overall test provisions in Part 2-4 of the Fair Work Act, as it was just before 6 June 2023, continue to apply in relation to agreement approval applications where the agreement was made before 6 June 2023. Question 26.2 of the Form F17A provides that the Agreement was made on 10 September 2023.
There was an issue raised by the Commission with the Applicant as to whether relevant casual employees who were given an opportunity to vote on the agreement were engaged during the access period and/or on the day of the vote.[1] The Applicant provided a list of casual employees who were engaged during the relevant period. I found that two hundred and thirty-four casual employees should have been given an opportunity to vote (or voted) as he/she were engaged during the access period or on the day of the vote. The Applicant had initially indicated that there were two hundred and thirty-three casual employees eligible to vote. The Applicant provided an amended F17A form and given the evidence before me as to the vote that occurred, that whether additional employee voted in favour of the approval of the agreement, voted against it, or otherwise abstained, the Agreement would still have been approved by a majority of eligible employees who cast a valid vote. Hence, having regard to the submissions of the Applicant and the evidence before me, I find that this error constitutes a minor procedural and/or technical error in accordance with s.188(2) of the Act.[2] I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this issue.[3] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[4]
The Applicant has provided written undertakings. 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 views of each person who the Fair Work Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings.
Pursuant to s.190(3) of the Act, I accept the undertakings.
Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Service Union of Australia (ETU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the ETU.
The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 April 2026.
DEPUTY PRESIDENT
[1] Kmart Australia Limited T/a Kmart and Others [2019] FWCFB 75992.
[2] Kingston City Council T/A King City Council [2020] FWCA 2323, at [49].
[3] Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.
[4] Ibid.
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