Application for approval of the UGL Spotswood Maintenance Centre Enterprise Agreement 2024

[1] An application has been made for approval of an enterprise agreement known as the UGL Spotswood Maintenance Centre Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by UGL Rail Services Pty Ltd (UGL). The Agreement is a single enterprise agreement.

Interaction with the National Employment Standards

[2] Clause 4.10 of the Agreement provides that it is to operate in conjunction with the National Employment Standards (NES) so as to provide the most favourable outcome to employees in any particular respect without displacing the minimum standards set by the NES (NES precedence clause). On this basis, I am satisfied that the apparent inconsistencies with the NES outlined below do not prevent the approval of this agreement:

1. Clause 15.1.3 of the Agreement provides that in respect to personal leave employees must, as soon as reasonably practicable and during the ordinary hours of the first day or shift of the absence, inform the UGL of their inability to attend for duty. Section 107 of the Act provides that notice must be given "as soon as practicable", which may be a time after the leave has started. On the basis of the NES precedence clause, this provision of the NES will prevail over the operation of clause 15.1.3 of the Agreement.

2. Clause 15.2.1 of the Agreement provides for compassionate leave, however it is silent in relation to the entitlement in circumstances when an employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. Section 104(1)(c) of the Act provides for compassionate leave in these circumstances. On the basis of the NES precedence clause, the superior entitlement provided for in the NES will apply

3. Clause 21.2 of the Agreement provides for the withholding of monies in circumstances where an employee has given insufficient notice of resignation. This clause appears to permit the employer to deduct monies from employee's entitlements under the NES (such as notice of termination, accrued but unused annual leave or long service leave on termination). Accordingly, this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act however, when read in conjunction with the NES precedence clause will have no effect to the extent of any inconsistency.

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

[4] The Australian Rail, Tram and Bus Industry Union (RTBU), the Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the Australian Manufacturing Workers Union (AMWU), each being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they wants the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the RTBU, CEPU and AMWU.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate 7 days after approval.

[6] An application was made by UGL that, if the agreement was approved, it be varied pursuant to s 218A of the Act, to correct two obvious errors, defects or irregularities (the variation application).

[7] Section 218A of the Act is akin to the slip rule found in s 602 of the Act, which allows the Commission to correct or amend an obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the Commission. The evident purpose of s.218A is to remove complexity associated with varying enterprise agreements containing obvious errors, defects or irregularities by simplifying the process by which corrections may be made.

[8] The Applicant submits that the amendment seeks to address errors obviously arising from the formatting of the Agreement. The views of the bargaining representatives were sought; however, no response was received. I am satisfied that these are obvious errors. I am satisfied that the amendment should be made, and that it is appropriate to do so by varying the Agreement pursuant to s 218A of the Act.

[9] The two variations are as follows:

1. Clause 15.1.2 is varied to:

   • Insert "(b)" before the words "Full time employees will receive 10 days (76 hours) of personal/carer's leave per year which will accrue on a progressive basis."

   • Renumber sub clauses (a) - (vi), (i) - (vi)

2. Without disturbing the introductory words or the notation, the table in appendix A is replaced in its entirety with the alternative table supplied in the variation application.

[10] The variation will come into effect on the same day as the agreement commences operation.

[11] The agreement, as varied, is attached to this decision.

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