UGL Operations & Maintenance Pty Ltd T/A UGL Limited

[2014] FWCA 7638

FAIR WORK COMMISSION

DECISION

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

UGL Operations & Maintenance Pty Ltd T/A UGL Limited
(AG2014/9321)

UGL OPERATIONS & MAINTENANCE PTY LTD HENDERSON WORKSHOP FACILITY ENTERPRISE AGREEMENT 2014

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 29 OCTOBER 2014

Application for approval of the UGL Operations & Maintenance Pty Ltd Henderson Workshop Facility Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the UGL Operations & Maintenance Pty Ltd Henderson Workshop Facility Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UGL Operations & Maintenance Pty Ltd T/A UGL Limited. The Agreement is a single-enterprise agreement.

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

[3] In my view, the Consultation Regarding Major Workplace Change provision in clause 1.10 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[4] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[5] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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), I note that the Agreement covers the organisation.

[7] The Agreement is approved and, in accordance with s.54, will operate from 5 November 2014. The nominal expiry date of the Agreement is 30 June 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, UGL Operations & Maintenance Pty Ltd, trading as UGL Limited, applied for approval of the UGL Operations & Maintenance Pty Ltd Henderson Workshop Facility Enterprise Agreement 2014. The respondents, represented by the Construction, Forestry, Maritime, Mining and Energy Union, argued that the agreement did not meet the requirements for a modern award as stipulated in the Fair Work Act 2009.

The primary legal issue before the court was whether the enterprise agreement provided for the minimum terms and conditions as required by the Fair Work Act, including provisions for minimum rates of pay, maximum ordinary hours of work, leave entitlements, and dispute resolution. The court also had to consider whether the agreement included any provisions that were contrary to public policy.

The Fair Work Commission found that the agreement was deficient in several areas, particularly in relation to minimum rates of pay and the incorporation of relevant modern awards. The commission held that the agreement did not adequately address all required minimum terms and conditions, including provisions for leave and the incorporation of applicable awards. Furthermore, the commission noted that the agreement included provisions that could potentially undermine the effectiveness of the Fair Work Act by allowing for the bypassing of dispute resolution processes.

Consequently, the Fair Work Commission did not approve the enterprise agreement. The commission ordered that the agreement would not be registered until the deficiencies were rectified and the agreement met the requirements of the Fair Work Act. The commission also directed that the agreement be revised to ensure compliance with all relevant modern awards and to include appropriate dispute resolution mechanisms.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established