UGL Rail Pty Ltd

[2025] FWCA 1382

[2025] FWCA 1382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

UGL Rail Pty Ltd

(AG2025/748)

UGL BALLARAT ENTERPRISE AGREEMENT 2024

Manufacturing and associated industries
COMMISSIONER MIRABELLA	MELBOURNE, 30 APRIL 2025

Application for approval of the UGL Ballarat Enterprise Agreement 2024

1. UGL Rail Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Application for Approval of the UGL Ballarat Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

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 FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 11 October 2024 and the Agreement was made on 7 March 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the Agreement.

1. Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, has been met.

1. The Agreement does not contain a delegates’ rights term, as required by s.205A(1) of the Act. Pursuant to s.205A(2) of the FW Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

1. The Notice of Employee Representation Rights (NERR) is unclear whether employees knew they were in a classification covered by the Agreement at the time the NERR was provided. On the basis of the material contained in the application and accompanying material provided, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the FW Act.

1. I observe that the following provision is likely to be inconsistent with the National Employment Standards (the NES): 

·     Clause 13.2: Compassionate Leave

·     Clause13.10.2: Public Holiday Substitution

1. However, noting clause 4.1 the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Rail, Tram and Bus Industry Union (RBTU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) and the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) being bargaining representatives for the Agreement, have each given notice under s.183 of the FW Act that they want the Agreement to cover them. In accordance with s.201(2) (and based on the declarations provided by the organisations), I note that the Agreement covers the organisations.

1. The Agreement is approved and, in accordance with s.54, will operate from 7 May 2025. The nominal expiry date of the Agreement is 30 September 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE528794  PR786437>

ANNEXURE A: