Fair Work Act 2009

s.185 - Application for approval of an enterprise agreement

AWU seeking permission to be heard on approval of an agreement - AWU not a bargaining representative - permission to be heard granted.

• [1] On 15 August 2025, UGL Engineering Pty Ltd (the Applicant) (UGL) made an application to the Fair Work Commission (FWC) under s.185 of the Fair Work Act 2009 (Cth) (the Act) for approval of the UGL Offshore Maintenance Greenfields Agreement 2025 (the Agreement). The Agreement was made with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union Western Australian Branch (the AMWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - Western Australian Divisional Branch (the CEPU) and the Construction, Forestry and Maritime Employees Union - Construction and General Division, Western Australia Divisional Branch (the CFMEU). The approval application was initially allocated to Deputy President Colman.

• [2] On 20 August 2025, the Australian Workers' Union (the AWU) contacted the FWC noting it may wish to be heard with respect to approval of the Agreement and seeking a copy of the application and other relevant materials. Redacted versions of those documents were provided on 22 August 2025. On 28 August 2025 the AWU wrote to the FWC advising that it wished to be heard as it had concerns that the AMWU, the CEPU and the CFMEU (collectively "the Unions") did not have the capacity between them to represent the industrial interests of a majority of workers to be covered by the Agreement. At this point the file was moved to my Chambers.

• [3] I convened a conference of the parties on 5 September 2025 to discuss a process for dealing with the AWU's application to be heard. Submissions were sought from all parties with respect to whether the AWU should be given permission to be heard pursuant to s.590 of the Act. The AWU and the Applicant made submissions, but "the Unions" did not.

• [4] The AWU submitted that it has broad constitutional coverage of work performed in or in connection with the hydrocarbons sector, including employees performing maintenance work, brownfields modification and upgrade work, and major shutdowns on offshore hydrocarbons facilities Australia wide. As such, the AWU submits it has an interest in this matter because the AWU is the principal union in the hydrocarbons sector and has the capacity to represent the industrial interests of all workers performing work covered by the Agreement.

• [5] Further, the AWU submits it has over 5,000 members in the hydrocarbons sector and as such there is a high likelihood that, should the Commission determine that the Agreement meets the requirements of the Act for approval, AWU members are likely to be employed under the terms and conditions of the Agreement in the future.

• [6] Drawing upon case authority from Hart v Coles Supermarkets[1], and MUA v MMA Offshore,[2] the AWU submits that:

"A manifest public interest lies in the Commission discharging its functions in conformity with Part 2-4 of the Act. It is vital that the task of approving enterprise agreements, which is reposed in the Commission, is not compromised by the approval of enterprise agreements that the Commission did not have the legal capacity to approve"[3].

• [7] The AWU submits that two issues arise from the material filed with the FWC. In the first instance, it says the coverage of the AMWU and CEPU is limited to occupational - rather than constitutional - coverage of discrete classifications within the scope of the Agreement. Given the broad scope of the Agreement, it says the AMWU and CEPU cannot represent the industrial interests of a majority of relevant employees. In the second instance, the AWU submits that UGL has - and does - actively avoid negotiating with the AWU and this calls into question the notion of the public interest.

• [8] The Applicant submitted that the AWU was not a bargaining agent and should not be heard. In essence, it says that "the Unions" are capable of representing the industrial interests of a majority of the employees likely to be employed under the Agreement. The Applicant submits that it agreed to bargain with "the Unions" and that those parties have met the necessary obligations for approval of an agreement. As there are no impediments based on the public interest, the Agreement should be approved.

• [9] It is clear from previous decisions that the FWC has the discretion to allow employee organisations to be heard in relation to the approval of an agreement. For example, see the decisions of the Full Benches in CFMEU v Collinsville Coal Operations Pty Ltd [2014] FWCFB 7940 (Collinsville) at [75], and AWU v Job Connect Recruitment Pty Ltd [2019] FWCFB 5132 at [16]. Those decisions affirmed that the FWC's power under s.590(1) is broad in scope and that the FWC can allow employee organisations a right to be heard in circumstances where they otherwise would not have such a right.

• [10] I also note the findings of Commissioner Cambridge in Inco Ships Pty Ltd v AIMPE [2016] FWC 1637 at [25], and Deputy President Binet in Neptune Diving Services v MUA [2017] FWC 5955 (Neptune) at [30]. In those matters, the FWC members noted that the scrutiny arising from an employee organisation acting as a contradictor can assist the FWC to properly fulfill its statutory function of assessing agreements. I further note the comment of Deputy President Binet in Neptune at [23] as follows:

"(the union) can provide a perspective independent of the author and proponent of the Proposed Agreement, who have a commercial interest in the Proposed Agreement being registered."

• [11] It is clear from the case findings that the discretion in s.590(1) of the Act is broad enough to allow me to hear from the AWU regarding approval of the Agreement if the circumstances warrant permission being granted. Clearly, it will not always be the case that it is appropriate to grant permission when the union concerned is not a bargaining representative and therefore without the right to be heard in relation to approval of an agreement. However, in this instance I have decided to exercise my discretion to allow the AWU to be heard, for the reasons that follow.

• [12] In the first instance, I note the findings of Deputy President Binet as set out at [10] above. The Applicant in this matter clearly has a vested commercial interest in the Agreement being approved. There is nothing wrong with that. However, I am mindful that in approving an agreement, the FWC is not just confirming the entitlements of the various parties, but also ensuring that other rights, such as the ability to seek improvements to wages and conditions and to take protected industrial action to achieve such improvements, are extinguished, at least during the life of the agreement. It is therefore an important function of the FWC to ensure that agreements - and the processes used to secure them - are properly scrutinised.

• [13] On some occasions, flaws in the agreement-making process come to light as a result of the FWC's own scrutiny. At other times, unions acting as contradictors have proven to be vital in bringing to the FWC's attention things that may stand in the way of approval. In this instance, while there is no suggestion of improper behaviour by the Applicant, I have formed a view that it is appropriate to allow the AWU to be heard.

[1] Hart v Coles Supermarkets Australia Pty Ltd and Bi-Lo Pty Limited [2015] FWCFB 7090, [46]-[47].

[2] Maritime Union of Australia v MMA Offshore Logistics Pty Ltd [2017] FWCFB 660; (2017) 263 IR 81, [61].

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