UGL Rail Services Pty Limited

[2022] FWCA 4550

[2022] FWCA 4550

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

UGL Rail Services Pty Limited

(AG2022/4872)

UGL Rail APMC Enterprise Agreement 2022

Building, metal and civil construction industries
COMMISSIONER HUNT	BRISBANE, 21 DECEMBER 2022

Application for variation of the UGL Rail APMC Enterprise Agreement 2022

1. An application has been made for variation of the UGL Rail APMC Enterprise Agreement 2022 (the Agreement) pursuant to s.210 of the Fair Work Act 2009 (the Act). The application has been made by UGL Rail Services Pty Limited (the Employer).

1. The Employer filed a statutory declaration in support of the application, which was declared by Mr Kevin Barry, Industrial Relations Advisor of the Employer.

1. The variation to the Agreement seeks to remove and replace an undertaking given by the Employer in the recent approval of the Agreement.  The Employer provided a detailed spreadsheet containing information that it says demonstrates that if the variation is approved, employees covered by the Agreement will remain better off overall under the Agreement than if they were covered by the two relevant awards; the Manufacturing and Associated Industries and Occupations Award 2020 and the Electrical, Electronic and Communications Contracting Award 2020.

1. On 16 December 2022, the Rail, Tram, and Bus Industry Union (RTBU) lodged a Form F23B ‘Declaration of employee organisation in relation to variation of an enterprise agreement’.  The RTBU advised that it was not satisfied that if the variation is approved all employees would be better off overall as against the relevant awards.

1. I convened a telephone conference on 21 December 2022 between the Employer and the RTBU at which the RTBU communicated that it no longer held concerns regarding the better off overall test.  It did, however, hold concerns that the Employer might seek to recover from employees’ wages payments on account of the variation being said to take effect from 1 December 2022.

1. The Employer gave a commitment that it would not unilaterally recover any such payment from employees covered by the Agreement.  I informed the parties that I would likely approve the variation with the effective date being the date of the decision, and not otherwise.  Having regard to the circumstances of the parties, I consider that to be an appropriate and fair date for the variation to take effect.

1. The variation can be found at Annexure A to this decision.

1. I am satisfied that each of the requirements of ss.210 and 211 as are relevant to this

application for approval of a variation have been met. The requirements in Regulation 2.09A of the Fair Work Regulations 2009 for the signing of a variation to the enterprise agreement have been met.

1. The variation to the Agreement is approved. In accordance with s.216 of the Act, the variation will operate from 21 December 2022.

1. The consolidated version of the Agreement, as varied, is attached to this decision.

COMMISSIONER

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