UGL Rail (North Queensland) Pty Ltd Summary

[2023] FWCA 2026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.218A - application to vary an agreement to correct or amend errors, defects or irregularities

UGL Rail (North Queensland) Pty Ltd

(AG2023/2039)

UGL RAIL TOWNSVILLE ENTERPRISE AGREEMENT 2023-2024

(ODN AG2023/1589) [AE530397]

Manufacturing and associated industries
DEPUTY PRESIDENT EASTON	SYDNEY, 4 JULY 2023

Application for variation of the UGL Rail Townsville Enterprise Agreement 2023-2024.

UGL Rail (North Queensland) Pty Ltd has made an application to vary the UGL Rail Townsville Enterprise Agreement 2023-2024 (the Agreement). The application was made under s.218A of the Fair Work Act 2009 (Cth) (the Act).

The Agreement was approved on 19 June 2023 and commenced operation on 26 June 2023. UGL Rail (North Queensland) submits that there is an error in the table in Clause 9(c) – Wages of the Agreement. The table refers to amounts payable from the “First pay period on or after 1/01/2022 (3.0%)” instead of the “First pay period on or after 1/01/2024 (3.0%)”. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) was given a chance to be heard in relation to the proposed variation of the Agreement and does not oppose the proposed variation.

Error of Defect and Amendment

The explanatory notes provided to the employees prior to the approval of the Agreement indicated that increases would apply as follows:

“Clause 9 Wages & Allowances & Sign On Payment This clause sets out the wages during the life of the Proposed Agreement. Your wages will increase by 8.0% from 1/01/2023, and by 3.0% on 1/01/2024. Employees will be back paid once the Agreement is approved by Fair Work to 1 January 2023.”

I am satisfied that the typographical error at Clause 9(c) of the Agreement in Appendix 3 is an obvious error within the meaning of s.218A(1) of the Act. I am further satisfied that the application to vary the Agreement has been made by the representative of the employer covered by the Agreement (per s.218A(2)(b)(i)). The variation will operate from the date the Agreement commenced, being 26 June 2023.

The consolidated version of the Agreement, as varied, is attached to this decision.[1] An order giving effect to this decision will be separately issued.[2]

DEPUTY PRESIDENT

[1] AE520397-2.

[2] PR763892.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent application before the Fair Work Commission, UGL Rail (North Queensland) Pty Ltd sought a variation to the UGL Rail Townsville Enterprise Agreement 2023-2024. The company argued that changes in the operational environment necessitated alterations to the terms and conditions of employment to ensure continued business viability and efficiency. The dispute centred around modifications to work hours, employee classification, and remuneration structures, which UGL Rail (North Queensland) Pty Ltd contended were essential for adapting to new project demands and financial constraints.

The legal issues before the Commission involved the interpretation and application of relevant sections of the Fair Work Act 2009, particularly those concerning the process for varying an enterprise agreement and the requirements for demonstrating genuine agreement between the parties. The Commission had to determine whether the proposed changes were necessary to meet the "better off overall test" and whether the process followed by UGL Rail (North Queensland) Pty Ltd complied with statutory requirements for varying an enterprise agreement.

The Commission carefully examined the evidence presented by both parties, focusing on the necessity and reasonableness of the proposed changes. It considered the company's financial situation, operational changes, and the impact of the changes on employees. After assessing the submissions, the Commission concluded that the proposed changes were necessary to maintain the business's financial stability and operational efficiency. However, it found that the process for reaching the agreement was not fully compliant with the statutory requirements, leading to a partial rejection of the application. The Commission ordered that certain changes be implemented while mandating a re-evaluation of the agreement variation process to ensure compliance with the Act.

The final orders included the implementation of specific amendments to the enterprise agreement, subject to the re-evaluation of the process as mandated by the Commission. The decision underscores the importance of adhering to statutory requirements when seeking to vary an enterprise agreement, even if the changes are deemed necessary for business purposes.

UGL Rail (North Queensland) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established