UGL Operations & Maintenance Pty Ltd T/A UGL Operations & Maintenance Pty Ltd

[2023] FWCA 3022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UGL Operations & Maintenance Pty Ltd T/A UGL Operations & Maintenance Pty Ltd

(AG2023/3017)

UGL ALCOA ELECTRICAL ENTERPRISE AGREEMENT 2023

Electrical contracting industry
DEPUTY PRESIDENT O’KEEFFE	PERTH, 18 SEPTEMBER 2023

Application for approval of the UGL Alcoa Electrical Enterprise Agreement 2023

An application has been made for approval of an enterprise agreement known as the UGL Alcoa Electrical Enterprise Agreement 2023 (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 Operations & Maintenance Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The notification time for the Agreement under s.173(2) was 17 May 2023 and the Agreement was made on 26 August 2023. Accordingly, the genuine agreement requirements are assessed under the Act as those applying before 6 June 2023 and the better off overall test is that applying on and from 6 June 2023[1].

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), who were a bargaining agent, did not express a view as to whether the Agreement passes the BOOT.

The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the CEPU.

The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 25 September 2027.

DEPUTY PRESIDENT

[1] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act. Those changes broadly commenced operation on 6 June 2023, subject to various transitional arrangements that included those to effect described above.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, UGL Operations & Maintenance Pty Ltd, trading as UGL Operations & Maintenance Pty Ltd, applied for the approval of the UGL Alcoa Electrical Enterprise Agreement 2023. The application involved ensuring that the agreement complied with the relevant provisions of the Fair Work Act 2009. The legal issues before the Commission involved examining whether the agreement met the requirements for being a "registered agreement" under the Fair Work Act, including whether it contained necessary terms and conditions and whether it had been fairly and properly negotiated.

The Commission examined the provisions of the agreement and the process by which it was negotiated. It considered whether the agreement included all the necessary terms as stipulated by the Fair Work Act, such as those relating to wages, hours of work, and other conditions of employment. The Commission also assessed whether the agreement was the product of genuine negotiations between the parties and whether the process was fair and transparent. Additionally, the Commission evaluated whether the agreement met the standard criteria for being a "better off overall test" agreement, ensuring that it did not disadvantage the employees.

After reviewing the evidence and submissions from both parties, the Commission found that the UGL Alcoa Electrical Enterprise Agreement 2023 complied with the requirements of the Fair Work Act. The agreement contained all necessary terms and was the product of genuine negotiations. The Commission concluded that the agreement was fair and met the better off overall test. Consequently, the Commission approved the agreement, thereby enabling it to be registered with the Fair Work Commission.

The Commission ordered that the UGL Alcoa Electrical Enterprise Agreement 2023 be approved and registered under the Fair Work Act. This registration ensures that the agreement is legally binding and enforceable between the parties involved. The approval signifies that the agreement has met all the necessary legal requirements and provides a framework for the employment conditions of the parties going forward.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established