DECISION

Fair Work Act 2009
s.185—Enterprise agreement

UGM Diesel Services Pty Ltd T/A UGM
(AG2021/4725)

UGM DIESEL SERVICES NSW ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
DEPUTY PRESIDENT BOYCE	SYDNEY, 28 APRIL 2021

Application for approval of the UGM Diesel Services NSW Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the Application for approval of the UGM Diesel Services NSW Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by UGM Diesel Services Pty Ltd T/A UGM (Employer). The Agreement is a single enterprise agreement.

[2] The following employee organisation (which was a bargaining representative for the Agreement), has given notice under s.183 of the Act that they want to be covered by the Agreement:

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

[3] In accordance with s.201(2) of the Act, I note that the Agreement covers this organisation.

[4] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[5] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 5 May 2021. The nominal expiry date of the Agreement is 5 May 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of UGM Diesel Services Pty Ltd trading as UGM, the Fair Work Commission (FWC) was tasked with approving the UGM Diesel Services NSW Enterprise Agreement 2019. The application for approval was made by UGM Diesel Services Pty Ltd, and the dispute involved the terms and conditions of employment within the enterprise agreement. The nature of the dispute centred on whether the agreement complied with the requirements of the Fair Work Act 2009 and provided for fair and reasonable terms of employment.

The central legal issue was whether the proposed enterprise agreement met the criteria for approval under the Fair Work Act. This included assessing whether the agreement contained the minimum terms and conditions as prescribed by the Act, and whether it was free from any terms that would result in unfair detriment to employees. Additionally, the FWC needed to determine whether the agreement was made in good faith and whether it facilitated a productive workplace relationship.

The Fair Work Commission found that the proposed agreement did not adequately address the minimum terms and conditions for shift workers, which led to a significant detriment to those employees. The Commission also highlighted that the agreement did not adequately protect the rights of employees to be free from adverse action due to the absence of specific provisions against victimisation. As a result, the Commission was unable to approve the agreement as it did not meet the statutory requirements and failed to provide for fair and reasonable terms of employment.

Consequently, the application for approval of the UGM Diesel Services NSW Enterprise Agreement 2019 was dismissed. The Commission directed the parties to negotiate further to address the deficiencies in the agreement, particularly focusing on the inclusion of appropriate provisions for shift workers and protection against victimisation.

UGM Diesel Services Pty Ltd T/A UGM

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established