UGL Rail (North Queensland) Pty Ltd

[2020] FWCA 5797

[2020] FWCA 5797

FAIR WORK COMMISSION

DECISION

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

UGL Rail (North Queensland) Pty Ltd
(AG2020/2952)

UGL RAIL TOWNSVILLE ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER HUNT	BRISBANE, 29 OCTOBER 2020

Application for approval of the UGL Rail Townsville Enterprise Agreement 2020.

[1] UGL Rail (North Queensland) Pty Ltd (the Employer) has applied for approval of an enterprise agreement known as the UGL Rail Townsville Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] The Fair Work Commission (the Commission) raised certain concerns regarding the Agreement with the Employer, and as a result, the Employer has provided written undertakings. A copy of the undertakings is attached at Annexure A. Pursuant to s.190(4) of the Act, I sought the views of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (the AMWU) and the employee bargaining representative regarding the undertakings, allowing a period of two business days from receipt of the undertakings to provide any views. I did not receive any correspondence from any of the bargaining representatives regarding the undertakings.

[3] 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. Pursuant to s.190 of the Act, I accept the undertakings. In accordance with s.201(3) of the Act, I note that the undertakings are taken to be a term of the Agreement.

[4] It is noted that clause 7(b) of the Agreement provides that termination of probationary employment is by one weeks’ notice or forfeiture in lieu. I further note that clause 25(d) of the Agreement provides that if an employee orders safety clothing valuing in excess of initial issue, payroll deductions will be made until the outstanding value is repaid, with a minimum deduction of $10. I am of the view that clauses 7(b) and 25(d) are likely unenforceable, being inconsistent with the Act. I note the undertakings of the Employer that it will not apply these clauses to the extent of any inconsistency with the Act.

[5] I have taken into consideration the material filed in the Commission. Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

[6] The 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) of the Act I note that the Agreement covers the AMWU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 November 2020. The nominal expiry date of the Agreement is 30 December 2020.

COMMISSIONER

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Annexure A: