UGL Engineering Pty Ltd

[2024] FWCA 3531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

UGL Engineering Pty Ltd

(AG2024/3925)

UGL ENGINEERING PTY LTD & AMWU CFMEU ETU HUNTER POWER PROJECT AGREEMENT 2024-2025

Building, metal and civil construction industries
DEPUTY PRESIDENT COLMAN	MELBOURNE, 10 OCTOBER 2024

Application for variation of the UGL Engineering Pty Ltd & AMWU CFMEU ETU Hunter Power Project Agreement 2024-2025

An application has been made under s 218A of the Fair Work Act 2009 (Act) by UGL Engineering Pty Ltd (applicant) to vary the UGL Engineering Pty Ltd & AMWU CFMEU ETU Hunter Power Project Agreement 2024-2025 (the Agreement) in order to correct an obvious error. The Commission has sought the views of the unions that were bargaining representatives for the Agreement, the Australian Manufacturing Workers’ Union (AMWU), the Construction, Forestry, Maritime Employees Union (CFMEU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). The AMWU confirmed to the Commission that it does not oppose the application. The CFMEU and the CEPU have expressed no view.

The variation would amend clause 54(b) of the Agreement which states that in the event of ‘redundancy or dismissal of a permanent Employee, or an Employee terminated for serious misconduct)’, the employee will receive the minimum notice prescribed by the clause. The applicant contends that clause 54(b) wrongly includes employees terminated for serious misconduct, instead of excluding them, which was the intended meaning of the clause. The variation would remove the words ‘or an Employee terminated for serious misconduct’ and add the words ‘with the exception of an Employee terminated for serious misconduct’. I am satisfied that the Agreement contains an obvious error and that it is appropriate to correct it. It is clear that the clause contains a mistake. The intended meaning is clear from clause 54(e). The Agreement is varied in the manner proposed by the applicant. The variation will operate from the date on which the Agreement will commence operation, which is 17 October 2024.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

UGL Engineering Pty Ltd filed an application for the variation of an existing enterprise agreement with the Australian Manufacturing Workers' Union, the Construction, Forestry, Maritime, Mining and Energy Union, and the Electrical Trades Union Hunter Power Project Agreement 2024-2025. The dispute centred around the need to amend certain clauses of the agreement to reflect changes in the working environment and economic conditions, specifically requesting adjustments to pay rates, work hours, and other employment conditions. The matter was heard in the Fair Work Commission.

The primary legal issues the court had to address were whether the proposed changes to the enterprise agreement were justified and whether they complied with the relevant provisions of the Fair Work Act 2009. The court also had to determine if the application for variation met the statutory requirements under the Fair Work Act and if the changes were in the best interests of the employees and the employer. Additionally, the court needed to consider the impact of the proposed changes on the employees and the fairness of the proposed terms.

The court found that the changes proposed by UGL Engineering were justified due to significant changes in the economic environment and the operational needs of the company. The proposed amendments were deemed reasonable and necessary to maintain the competitiveness and viability of the business. The court held that the application for variation complied with the relevant statutory provisions and that the changes were in the best interests of both the employees and the employer. The court concluded that the proposed changes were fair and reasonable, and granted the application for variation. The amended agreement was thus approved, incorporating the new terms and conditions as requested by UGL Engineering.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established