UGL Operations and Maintenance Pty Limited

[2015] FWCA 5675

[2015] FWCA 5675

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a greenfields agreement

UGL Operations and Maintenance Pty Limited
(AG2015/4212)

UGL OPERATIONS AND MAINTENANCE (SERVICES) PTY LTD APLNG ENTERPRISE AGREEMENT 2015

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT RICHARDS	BRISBANE, 19 AUGUST 2015

Application for approval of the UGL Operations and Maintenance (Services) Pty Ltd APLNG Enterprise Agreement 2015.

Summary: approval against objections by the Australian Workers’ Union

[1] An application pursuant to s.185 of the Fair Work Act 2009 (“the Act”) was made on 31 July 2015 by UGL Operations and Maintenance Pty Limited for the approval of a Greenfields agreement known as the UGL Operations and Maintenance (Services) Pty Ltd APLNG Enterprise Agreement 2015(“the Agreement”).

[2] Statutory declarations were provided by:

● Mr K McKenzie, Deputy Divisional Branch Secretary, of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”); and

● Mr R. Webb, State Secretary, of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (“the AMWU”).

[3] In light of these statutory declarations and in accordance with s.187(5)(a) of the Act, I am satisfied that the CEPU and AMWU are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it and that it is in the public interest to approve the Agreement.

[4] 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.

[5] The Agreement is approved and will operate in accordance with s.54 of the Act.

[6] I do add that the Australian Workers’ Union (“the AWU”) opposed the approval of the Agreement. It contended that the terms afforded were less than what it held to be as an industry standard (in the maintenance industry in Gladstone). But such claims did not cause me to conclude the Agreement did not meet the Better Off Overall Test and not satisfy the requirements of the National Employment Standards.

[7] The AWU also maintained (for purposes of s.187(5)(a) of the Act), that the CEPU and the AMWU were not able to represent the majority of the employees intended to be covered by the Agreement as the employees who would be employed in a future shutdown would more likely fall under the eligibility rules of the AWU (they being Riggers, Scaffolders, Trades Assistants and Labourers).

[8] This may arguably be the case at a future point in a particular context, but I have no certainty about such future events. The only factual and uncontested material before me is that at the point of mobilisation the majority of the classifications to be employed fall within the eligibility rules of the unions with whom the Agreement is made and which are covered by the Agreement (the CEPU and the AMWU). I cannot divine the future operation of the Agreement beyond the factual case at the point of approval.

[9] Further, there is no public interest issue that would restrain me from approving the Agreement. Conversely, given the objects of the Act, I am positively persuaded that the public interest resides in approving the agreements (for the purposes of s.187(5)(b) of the Act) regardless of the concerns expressed by the AWU. In any event, I indicate that the AWU does not contend expressly to the contrary.

SENIOR DEPUTY PRESIDENT

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