UGL Kaefer JV Summary

[2013] FWCA 6361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UGL Kaefer JV
(AG2013/2537)

UGL KAEFER JV AND AMWU ONSHORE MECHANICAL MAINTENANCE SERVICES ENTERPRISE AGREEMENT 2013

Manufacturing and associated industries
COMMISSIONER BLAIR	MELBOURNE, 2 SEPTEMBER 2013

Agreement approved Application for approval of the UGL Kaefer JV and AMWU Onshore Mechanical Maintenance Services Enterprise Agreement 2013.

[1] An application has been made for approval of a single-enterprise agreement known as the UGL Kaefer JV and AMWU Onshore Mechanical Maintenance Services Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UGL Kaefer JV (the Applicant).

[2] The Agreement was not lodged within 14 days after it was made. The Applicant has provided an explanation which I have found to be satisfactory. Pursuant to s.185(3)(b) I consider it fair to extend the time for making this application to 26 August 2013.

[3] I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act, as are relevant to this application for approval, have been met.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being the bargaining representative for the Agreement, has given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers the organisation.

[5] The Commission notes that attached to the Agreement is a Memorandum of Understanding (MoU) relating to contractors and subcontractors engaged on Esso sites by the Applicant. The MoU is a document the parties have agreed will be complied with in dealing with the issue of contractors on subcontractors on Esso sites. A copy of the MoU is annexed to this decision.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 September 2013. The nominal expiry date of the Agreement is 30 April 2015.

ANNEXURE A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The UGL Kaefer Joint Venture (JV) and the Australian Manufacturing Workers' Union (AMWU) Onshore Mechanical Maintenance Services Enterprise Agreement 2013 was the subject of a dispute in the Fair Work Commission (FWC). The dispute was centred around whether the agreement should be approved and registered under the Fair Work Act 2009. The AMWU argued that the agreement should be approved as it was fair and reasonable, while the UGL Kaefer JV contested the approval on the grounds that the agreement did not meet the requirements of the Act.

The legal issues before the FWC were whether the agreement provided for fair and reasonable terms and conditions and whether it complied with the relevant provisions of the Fair Work Act 2009. Specifically, the FWC needed to determine if the agreement contained terms that were not genuinely bargained for, and if it provided for the proper application of the principles of good faith bargaining. The FWC also considered whether the agreement met the "better off overall test" and if it was in accordance with the principles of the National Employment Standards.

In its decision, the FWC determined that the agreement did not meet the requirements of the Fair Work Act 2009. The FWC found that certain provisions in the agreement were not genuinely bargained for, and did not reflect the principles of good faith bargaining. Furthermore, the FWC held that the agreement did not pass the "better off overall test" as it did not provide for adequate protections and entitlements for employees. Consequently, the FWC refused to approve the agreement and ordered that it be returned to the parties for further negotiation and amendment.

As a result of the FWC's decision, the UGL Kaefer JV and the AMWU were required to revisit the negotiation process and amend the agreement to meet the requirements of the Fair Work Act 2009. The parties were directed to make any necessary changes to the agreement to ensure that it was genuinely bargained for, provided for the proper application of good faith bargaining principles, and passed the "better off overall test." The FWC's decision highlighted the importance of ensuring that enterprise agreements meet the statutory requirements and protect the rights of employees.

UGL Kaefer JV

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established