UGL Rail Services Pty Limited

[2021] FWCA 3403

[2021] FWCA 3403

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UGL Rail Services Pty Limited
(AG2021/5298)

UGL AND CEPU ELECTRICAL DIVISION QUEENSLAND REGIONAL ENTERPRISE AGREEMENT 2020-2024

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 15 JUNE 2021

Application for approval of the UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024.

[1] An application has been made for approval of a greenfields agreement known as the UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024 (the Agreement). The application was made by UGL Rail Services Pty Limited (UGL) pursuant to s.185 of the Fair Work Act 2009 (Act).

[2] The Agreement is a stand-alone agreement and applies to UGL with respect to the employment of all its employees in Queensland performing work within the classifications contained in appendices to the Agreement. The classifications include Electrical Workers Grades 1-10, Electrical Fitters, Communication Tradespersons, apprentices and adult apprentices. The Agreement does not apply to work performed on civil and mechanical structures or in commercial construction where the total construction value is over $200 million and where a project agreement applies. 1

[3] In deciding whether to approve a greenfields agreement, the Commission must consider whether the Agreement relates to a genuine new enterprise that the employer proposes to establish. This is a jurisdictional fact which requires consideration of the objective character and identity of the business to which the Agreement will apply.

[4] The application was supported by a Declaration of Mr Dean Langridge, Industrial Relations Manager, dated 25 May 2021. The Declaration stated:

“This agreement relates to a genuine new enterprise for UGL Rail Services Pty Ltd (including a new activity, project or undertaking) which was made at a time when the Applicant had not yet employed any of the persons who will be necessary for the normal conduct of the enterprise.”

[5] Further information was sought as to the character and identity of the genuine new enterprise, and a further Declaration was provided on 8 June 2021. This Declaration stated:

“This Agreement covers construction related activities performed by employees of UGL Rail Services Pty Ltd in Queensland. UGL Rail Services Pty Limited have not undertaken any activity, project or undertaking that would otherwise be covered by clause 1.7 of the Agreement. UGL Rail Services Pty Ltd has not yet employed any of the persons who will be necessary for the normal conduct of the enterprise otherwise be [sic] covered by clause 1.7 of the Agreement. UGL Rail Pty Ltd have not yet commenced work in establishing the genuine new enterprise.”

[6] At a hearing on 11 June 2021 Mr Langridge provided further information about the proposed new enterprise, including that:

● the Agreement relates to a genuinely new enterprise for UGL, namely construction work in Queensland;
● UGL primarily performs maintenance on rolling stock; the agreement relates to an entirely new undertaking covering construction work for projects including Cross River Rail and Inland Rail;
● UGL currently has no operations in the State of Queensland and has not previously performed work covered by the scope of the Agreement;
● whilst UGL Rail operates in other States, there are no other enterprise agreements that would otherwise cover work within the scope of the Agreement;
● UGL has no current employees, nor has it previously employed employees, who would otherwise be covered by the Agreement; and
● UGL does not currently, nor has it previously, performed work that would be covered by the scope of the proposed Agreement.

[7] Based on the Applicant’s submissions at the hearing and the material before me, I am satisfied that the proposed Agreement relates to a genuine new enterprise and that the Agreement meets the requirements of s.172(2)(b) of the Act.

[8] Pursuant to s.53(2)(b) of the Act, I note the Agreement was made with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and that the Agreement covers this organisation. The CEPU provided a Declaration of Mr Peter Ong, Divisional Branch Secretary, dated 26 May 2021 in support of the application.

[9] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the CEPU is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under it. I am also satisfied based on the Declarations of Mr Langridge and Mr Ong that it is in the public interest to approve the Agreement and that the group of prospective employees covered was fairly chosen.

[10] The Applicant has provided written undertakings and a copy of the undertakings is attached in Annexure A. In accordance with s.191(1) of the Act, the undertakings are taken to be a term of the Agreement.

[11] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

● Clause 3.4.3 – Notice of termination by employee;
● Clause 3.5.12 - Employees exempted;
● Clause 6.1.8 – Calculation of continuous service for annual leave; and
● Clause 6.2.6 – Employee must give notice.

However, noting the undertaking given by the Applicant, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 June 2021. The nominal expiry date of the Agreement is 31 January 2025.

COMMISSIONER

Annexure A

 1   Clause 1.7, 1.6.1 and Appendix 2 of the Agreement.

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<AE511834  PR730690>