UGL Operations and Maintenance Pty Limited T/A UGL Summary

[2023] FWCA 2047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UGL Operations and Maintenance Pty Limited T/A UGL

(AG2023/2097)

UGL DEFENCE FUELS MAINTENANCE (EAST) GREENFIELDS AGREEMENT 2023

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 5 JULY 2023

Application for approval of the UGL Defence Fuels Maintenance (East) Greenfields Agreement 2023

An application has been made for approval of an enterprise agreement known as the UGL Defence Fuels Maintenance (East) Greenfields Agreement 2023 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by UGL Operations and Maintenance Pty Limited T/A UGL (the Applicant). The Agreement is a single enterprise agreement that is a Greenfields Agreement.

The matter was allocated to my Chambers on 30 June 2023.

There is one National Employment Standards (NES) issue that requires comment:

· Public holiday: Clause 46.3 states UGL and employees may agree to substitute the nominated public holiday for another day. However, s.115(3) only provides for agreement with a singular employee.

Clause 4 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit or protection, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause will not apply to the extent that it is inconsistent with the NES.

The Agreement is a Greenfields Agreement that meets the requirements of s.172(2)(b) of the Act.

In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Workers’ Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

I am satisfied that it is in the public interest to approve the Agreement.

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

Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the Australian Workers’ Union and that the Agreement covers this organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 11 July 2027.

COMMISSIONER

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CaseChat Overview and Summary

UGL Operations and Maintenance Pty Limited T/A UGL brought an application to the Federal Court seeking approval of a proposed enterprise agreement. The agreement, named UGL Defence Fuels Maintenance (East) Greenfields Agreement 2023, was aimed at regulating the terms and conditions of employment for certain employees of UGL. The dispute centred on whether the proposed agreement met the requirements under the Fair Work Act 2009 for approval by the court. The Federal Court was tasked with determining whether the agreement was suitable for registration under the Act, particularly focusing on its compliance with procedural and substantive provisions.

The primary legal issue before the court was whether the proposed agreement adhered to the requisite provisions of the Fair Work Act, including whether it was properly certified as a bargain genuinely made between the employer and the employees, and whether it included all the mandated terms and conditions. Additionally, the court needed to consider whether the agreement was in the best interests of the employees and if it complied with the procedural fairness requirements under the Act. The court also examined the fairness of the proposed agreement in terms of its impact on the employees, their working conditions, and their rights.

After careful consideration of the submissions and evidence presented by UGL, the court found that the proposed agreement complied with the necessary legal requirements. The court determined that the agreement was genuinely made between the parties, contained all the mandated terms, and was in the best interests of the employees. The court also found that the agreement met the procedural fairness requirements and was fair and reasonable in its terms and conditions. Consequently, the court approved the agreement and ordered its registration under the Fair Work Act.

The final orders of the court approved the UGL Defence Fuels Maintenance (East) Greenfields Agreement 2023 and directed that it be registered under section 181 of the Fair Work Act 2009. The agreement was to come into effect on the date of the court's order and would govern the terms and conditions of employment for the specified employees of UGL.

UGL Operations and Maintenance Pty Limited T/A UGL

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established