UGL Rail Services Pty Ltd

[2021] FWCA 668

[2021] FWCA 668

FAIR WORK COMMISSION

DECISION

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

UGL Rail Services Pty Ltd
(AG2020/4115)

UGL UNIPART JV AUBURN ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT ASBURY	BRISBANE, 10 FEBRUARY 2021

Application for approval of the UGL Unipart JV Auburn Enterprise Agreement 2020.

[1] UGL Rail Services Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the UGL Unipart JV Auburn 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] I note that the application of clause 7.5 of the Agreement relating to abandonment of employment may result in an inconsistency with the National Employment Standards (NES) on the basis of whether the employer terminates employment by accepting the abandonment and is required to pay notice to the employee. However, I also note that clause 1.8 of the Agreement provides that the Agreement shall not operate so as to cause an employee to suffer a reduction in ordinary time earnings or in relation to an entitlement under the NES and that this clause addresses any potential inconsistency in relation to the entitlement of an employee to be paid notice on termination of employment by the employer.

[3] On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. Further, I note that by virtue of s.55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s.56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s.55.

[4] The Agreement does not contain a flexibility term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement and the Form F17 Employer’s declaration in support of an application for approval of the Agreement that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met.

[6] The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[7] The Agreement is approved in accordance with s.54 of the Act and will operate from 17 February 2021. The nominal expiry date of the Agreement is 13 August 2022.

DEPUTY PRESIDENT

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