[1] An application has been made for approval of a greenfields agreement known as the UGL CO2 Greenfields Project Agreement 2025 (Agreement). The application was made by UGL Engineering Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act).

[2] This is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[3] In accordance with s.187(5) of the Act, I am satisfied that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Construction, Forestry and Maritime Employees Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it, and that it is in the public interest to approve the Agreement.

[4] I observe that certain provisions of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 (Cth) (Regulations) is taken to be a term of the Agreement.

[6] The Applicant, who is also the employer covered by the Agreement, provided three written undertakings. The first of these dealt with a concern raised by the Commission in relation to clause 9 of the Agreement which stated that:

"Employees who are elected or nominated workplace delegates will be entitled to the delegates rights provisions of the Manufacturing and Associated Industries and Occupations Award 2020 and the Electrical, Electronic and Communications Contracting Award 2020 as applicable to the Employee and as varied from time to time".

[7] The Commission had raised the concern that it was not apparent that the two awards mentioned in the clause would be "applicable" to the employees. It was unclear as to why these awards had been chosen and not the Building and Construction General On-site Award 2020 (Award), which is the relevant award for the purposes of the better off overall test and which would therefore cover the employees. This meant those employees who would have the rights provided for under clause 36A of the Award may not have these same rights under the Agreement. The Commission indicated that it was considering the best way to address this concern, including noting in the decision that the delegates rights term in the Building Award would be a term of the Agreement pursuant to s.205 of the Act.

[8] In response, the Applicant provided an undertaking to replace clause 9 of the Agreement with the following:

"Employees who are elected or nominated workplace delegates will be entitled to the delegates rights provisions set out in clause 36A of the Building and Construction General On-site Award 2020, which is attached and marked as Appendix 5_._"

[9] A question arises as to whether this is an issue that can be remedied by way of undertaking, noting that undertakings can only be accepted if the Commission has a concern that the agreement does not meet the requirements set out in ss.186 and 187 in the Act. To the extent that awards prescribe delegates rights terms and agreements prescribe terms that may be less favourable than those delegates rights terms in the relevant modern award/s, I accept that these issues may present as a concern in relation to the better off overall test (BOOT), depending on the terms of an agreement relative to the relevant modern award/s. Undertakings may be a way to address a BOOT concern. However, in the current matter, the concern raised by the Commission was not raised in the context of the requirements of ss.186 and 187 and I considered the better course of action available to the Commission is to amend the Agreement pursuant to s.218A in the manner set out in the Applicant's proposed undertaking. I put the parties on notice of this view, no party raised any objections to it. As such, I vary the Agreement such that clause 9 is replaced with the following:

"Employees who are elected or nominated workplace delegates will be entitled to the delegates rights provisions set out in clause 36A of the Building and Construction General On-site Award 2020, which is attached and marked as Appendix 5_._"

[10] As to the balance of the undertakings, a copy of which are attached at Annexure A of this decision (Undertakings), the views of each person I know is a bargaining representative for the Agreement were sought in relation to the Undertakings and no objections were raised.

[11] I am satisfied that the effect of accepting the Undertakings is not likely to:

• (a) cause financial detriment to any employee covered by the Agreement; or

• (b) result in substantial changes to the Agreement.

[12] Pursuant to s.190(3) of the Act, I accept the Undertakings.

[13] Subject to the Undertakings, and on the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 190 of the Act as are relevant to the application for approval of the Agreement have been met.

[14] Pursuant to s.53(2)(b) of the Act, I note that the Agreement was made with the Construction, Forestry and Maritime Employees Union (CFMEU), the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and that the Agreement covers the organisations.

[15] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2025. The nominal expiry date of the Agreement is 23 May 2029.

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