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[2026] FWC 1141
General information, not legal advice.
Fair Work Commission
2026-04-01
Original judgment source is linked above.
S 319 - Application for an order relating to instruments covering new employer and non-transferring employees
Application for an order relating to instrument covering non-transferring employees - Applications granted.
[1] UGL Engineering Pty Ltd (the Applicant) has applied for Orders under section 319 of the Fair Work Act 2009 (the Act). The orders proposed are in the following terms (the Applications):
(a) an enterprise agreement that has been approved by the FWC;
[3] Subsections 311(1) to (3) and (6) of the Act relevantly provide:
Meanings of transfer of business, old employer, new employer and transferring work
(1) There is a transfer of business from an employer (the old employer) to another employer (the new employer) if the following requirements are satisfied:
(a) the employment of an employee of the old employer has terminated;
(b) within 3 months after the termination, the employee becomes employed by the new employer;
(c) the work (the transferring work) the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer;
(d) there is a connection between the old employer and the new employer as described in any of subsections (3) to (6).
(2) An employee in relation to whom the requirements in paragraphs (1)(a), (b) and (c) are satisfied is a transferring employee in relation to the transfer of business.
Transfer of assets from old employer to new employer
(3) There is a connection between the old employer and the new employer if, in accordance with an arrangement between:
(a) the old employer or an associated entity of the old employer; and
(b) the new employer or an associated entity of the new employer;
the new employer, or the associated entity of the new employer, owns or has the beneficial use of some or all of the assets (whether tangible or intangible):
(c) that the old employer, or the associated entity of the old employer, owned or had the beneficial use of; and
(d) that relate to, or are used in connection with, the transferring work.
New employer is associated entity of old employer
(6) There is a connection between the old employer and the new employer if the new employer is an associated entity of the old employer when the transferring employee becomes employed by the new employer.
[4] Section 314 of the Act, new non‑transferring employees of new employer may be covered by transferable instrument, states:
(a) a transferable instrument covers the new employer because of paragraph 313(1)(a); and
(b) after the transferable instrument starts to cover the new employer, the new employer employs a non-transferring employee; and
(c) the non-transferring employee performs the transferring work; and
(d) at the time the non-transferring employee is employed, no other enterprise agreement or modern award covers the new employer and the non-transferring employee in relation to that work;
then the transferable instrument covers the new employer and the non-transferring employee in relation to that work.
(2) A non-transferring employee of a new employer, in relation to a transfer of business, is an employee of the new employer who is not a transferring employee.
(3) This section has effect subject to any FWC order under subsection 319(1).
[5] Section 317 of the Act, 'FWC may make orders in relation to a transfer of business, relevantly' provides that the 'FWC [is] to make certain orders if there is, or is likely to be, a transfer of business from an old employer to a new employer'.
[6] Section 319(1) provides that Fair Work Commission (the Commission) may make certain orders that apply to a new employer and a non-transferring employee. The types of orders that the Commission may make are set out in subsections 319(1)(a) to (c) of the Act:
(a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of subsection 314(1)does not, or will not, cover the non-transferring employee;
(b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer;
(c) an order that an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer.
Note: Orders may be made under paragraphs (1)(b) and (c) in relation to a non- transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph ( 1)(b) started to cover the new employer.
[7] Section 319(3) of the Act further sets out the matters that the Commission must take into account in deciding whether to make an order under section 319(1) of the Act:
(3) In deciding whether to make the order, the FWC must take into account the following:
(i) the new employer or a person who is likely to be the new employer; and
(ii) the employees who would be affected by the order;
(b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;
(c) if the order relates to an enterprise agreement--the nominal expiry date of the agreement;
(d) whether the transferable instrument would have a negative impact on the productivity of the new employer's workplace;
(e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer;
(f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer;
(g) the public interest.
[8] UGL Pty Limited (UGL) is the holding company of a diverse group of companies that operate across broad industries within Australia. The companies are broadly divided into three major divisions being Projects, Services and Transport. Those divisions focus on different types of work and operate independently.
[9] Following a review of the business, it was identified that over the course of time, cross
over of the divisions had occurred and blurred the intended distinct operations. In 2025, UGL undertook a comprehensive process of reviewing and reorganising its business to ensure that all contracts, assets, and resources including its employees sat with the correct company within the correct business division.
[10] Employees that were impacted by that re-alignment were consulted, as were relevant Unions, who have all indicated they do not oppose the Applications. Each relevant employee's employment was terminated with their old employer, and commenced employment with their new employer (within three months of the termination of the old employer). The transferring work remains the same, or substantially the same, as the work the employee performed for the old employer, and the old employer and new employer are associated entities.
[11] The enterprise agreements that are the subject of these proceedings are "transferable instruments" as defined by section 312 of the Act, as they are enterprise agreements that have been approved by the Commission.
[12] The Applicants submissions address each of the provisions under section 319(3) of the Act which I am required to consider.
Section 319(3)(a)(i) - Views of the New Employer or a Person Who is Likely to be the New Employer
[13] UGL Engineering Pty Ltd currently has a large number of employees, however as part of the realignment of divisions it was identified that a group of employees, and the enterprise agreements that cover the associated work, are better suited to sit within the engineering business.
[14] The terms and conditions of those enterprise agreements did transfer with the transferring employees and the work is the same or substantially similar to the work performed for the old employer. UGL Engineering Pty Ltd is seeking the order to extend the relevant enterprise agreements coverage to enable it to have similar employment covered by the same enterprise agreements and ensure consistency of its operations. UGL Engineering Pty Ltd is in favour of the order being made.
Section 319(3)(a)(ii) - Views of the Employees Who Would Be Affected by the Order
[15] A comprehensive consultation process was undertaken with the transferring employees, and their Union, in respect of their employment.
[16] From 3 November 2025, UGL Engineering Pty Ltd held meetings with all impacted employees regarding the changes that were to occur. Consultation meetings were held with employees at each site. At those consultation meetings, employees were invited to ask questions, and provided with a central email address to send questions that may arise after the
meeting. Various questions were received both in person and through the central email
address, and UGL Engineering Pty Ltd responded to these within reasonable time frames. All questions were responded to prior to the transfer date.
Section 319(3)(b) - Whether Any Employees Would Be Disadvantaged by the Order in Relation to Their Terms and Conditions of Employment
[17] Prior to the transfer, UGL Engineering Pty Ltd did not employ anyone in these roles or to perform the work covered by the UGL Rail Services Pty Limited and CEPU Electrical Division Queensland Cross River Rail Project Enterprise Agreement 2025-2027 or UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024. Accordingly, its employees will not be disadvantaged should the Commission make the orders sought.
Section 319(3)(c) - The Nominal Expiry Date of the Agreement
[18] The nominal expiry date of the Agreements is 31 July 2027 for the UGL Rail Services Pty Limited and CEPU Electrical Division Queensland Cross River Rail Project Enterprise Agreement 2025-2027, and 31 January 2025 for the UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024.
[19] While the UGL and CEPU Electrical Division Queensland Regional Enterprise Agreement 2020-2024 has passed its nominal expiry date of 31 January 2025, in circumstances where UGL is seeking to appropriately align their operations, and that agreement is the only subject agreement to have passed its expiry date, I do not consider that expiry to be a bar to the granting of the orders sought.
Section 319(3)(d) - Whether the Transferable Instrument Would Have a Negative Impact on the Productivity of The New Employer's Workplace
[20] I am satisfied that granting the orders will promote productivity, efficiency and workplace harmony by reducing the administrative burden on the Applicant while ensuring that employees performing the same work have the same minimum terms and conditions of employment. Transferring employees will be covered by the transferable instrument that came with them at the time of the transfer of their employment to the new employing entity.
Section 319(3)(e) - Any significant Economic Disadvantage to the New Employer
[21] There was no evidence or submission in relation to any negative impact on productivity or significant economic disadvantage. I do not consider that there would be any negative impacts arising as a consequence of the making of the orders sought.
Section 319(3)(f) - The Degree of Business Synergy Between the Transferable Instrument and Any Workplace Instrument That Already Covers the New Employer
[22] UGL Engineering Pty Ltd does not currently have any enterprise agreements. I accept that should the order sought be made by the Commission, it will provide the necessary synergy across its workforce moving forward as the businesses develop.
[23] There is no indication on the materials to the effect that granting the application would adversely affect the public interest. I am satisfied that it is not contrary to the public interest to make the orders sought.
[24] For the reasons above, I am satisfied that the conditions for the making of an order in the terms sought have been met. The application is granted.
[25] Order PR798283 will issue separately to this decision.
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