UGL Engineering Pty Ltd Summary

[2022] FWCA 1892

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185–Enterprise agreement

UGL Engineering Pty Ltd

(AG2022/1548)

UGL Maintenance (South-East) Queensland Enterprise Agreement 2021

Electrical contracting industry
COMMISSIONER MATHESON	SYDNEY, 9 JUNE 2022

Application for approval of the UGL Maintenance (South-East) Queensland Enterprise Agreement 2021.

An application has been made for approval of an enterprise agreement known as the UGL Maintenance (South-East) Queensland Enterprise Agreement 2021 (Agreement). The application was made by UGL Engineering Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 1.4 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A of this decision (Undertakings). The views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a)cause financial detriment to any employee covered by the Agreement; or

(b)result in substantial changes to the Agreement.

Pursuant to s.190(3) of the Act, I accept the Undertakings.

Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, 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 16 June 2022. The nominal expiry date of the Agreement is 16 June 2025.

COMMISSIONER

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Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by UGL Engineering Pty Ltd for the approval of the UGL Maintenance (South-East) Queensland Enterprise Agreement 2021. The application was lodged under section 185 of the Fair Work Act 2009. The Agreement was a single enterprise agreement and was set to cover the electrical contracting industry in the South-East Queensland region. The application was heard by Commissioner Matheson in Sydney on 9 June 2022.

The primary legal issues addressed by the Commission were whether the Agreement met the requirements of sections 186, 187, 188 and 190 of the Act, and if it provided for the prescribed model flexibility term as per the Fair Work Regulations 2009. Additionally, the Commission had to consider the effect of the Employer's written undertakings and whether the Agreement would provide for entitlements no less favourable than the National Employment Standards. The application was also subject to the requirement that the Agreement be approved by the relevant bargaining representative, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia.

The Commission found that certain provisions of the Agreement might be inconsistent with the National Employment Standards but was satisfied that the more beneficial entitlements of the NES would prevail in the case of any inconsistency. The Commission also noted that the Employer had provided written undertakings which would not likely cause financial detriment to any employee or result in substantial changes to the Agreement. The views of each person known to be a bargaining representative for the Agreement were sought in relation to the Undertakings, and no objections were raised. Based on these considerations, the Commission accepted the Undertakings and was satisfied that all relevant requirements of the Act had been met. The model flexibility term prescribed by the Fair Work Regulations was also incorporated into the Agreement. Finally, the relevant bargaining representative had indicated its intention for the Agreement to cover its members, and the Agreement was approved and will operate from 16 June 2022 with a nominal expiry date of 16 June 2025.

UGL Engineering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established