UGL RS Pty Ltd [2026] FWC 1063 (30 March 2026)

s.319 - Application for an order relating to instruments covering new employer and non-transferring employees

Application for an order relating to instruments covering new employer and non-transferring employees

[1] This decision concerns an application made by UGL RS Pty Ltd (UGL RS) for an order pursuant to section 319(1)(b) of the Fair Work Act 2009 (FW Act). The application was made in circumstances where there is, or there is likely to be, a transfer of business within the meaning of Division 2 of Part 2-8 of the FW Act between the UGL RS and UGL Operations and Maintenance (Services) Pty Limited (UGL). The UGL Mackay & Regional Queensland Workshops Enterprise Agreement 2025 (the Agreement) is a transferable instrument within the meaning of Division 2 of Part 2-8 of the FW Act. The application concerns non-transferring employees of UGL RS.

[2] On being allocated the application, my Associate sent an email to UGL RS, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU). The CEPU and the AMWU are both covered by the Agreement. That email sought the views of the CEPU and the AMWU. By email dated 9 March 2026, Ms Lisa Midson (Legal Officer, CEPU) advised that the CEPU had no objection to the order sought by UGL RS. By email dated 9 March 2026, Ms Melissa McAllister (Assistant Research Officer, AMWU) advised that the AMWU had no objection to the order sought by UGL RS.

[3] On 11 March 2026, my Associate sent an email to UGL RS, the CEPU and the AMWU. That email directed:

• UGL RS to file with the Fair Work Commission, and serve on any non-transferring employee/s, the AMWU and the CEPU, any witness statements and outline of submissions relied upon in support of the application and a draft order by 4pm Friday 20 March 2026.

• Any person that opposed the application to advise their position, by email, by 4pm Wednesday 25 March 2026.

• Advised that if the application was opposed that further directions would be issued.

• Advised that if the application was not opposed, the Commission intended to deal with the Application 'on the papers' and without the need for a hearing.

[5] No person has advised of their opposition to the application. Consequently, I have determined to deal with the application 'on the papers' and without the need for a hearing.

[6] The matters that the Fair Work Commission must take into account in deciding whether to make the order are set out at section 319(3) of the FW Act. With respect to each such matter: the views of the new employer, UGL RS, are that it wants the order to be made (s.319(3)(a)(i)); I am satisfied that UGL RS has properly served the application and supporting documents on any employees who would be affected by the order. I am also satisfied that UGL RS has consulted with any such employees, as well as the CEPU and the AMWU. I am told that one non-transferring employees has recently commenced employment with UGL RS. That non-transferring employee and / or any other employee who would be affected by the order have not expressed a view about the order. In the circumstances, the views of the employees who would be affected by the order is a neutral consideration (s.319(3)(a)(ii)); I am satisfied that any employees will not be disadvantaged by the order in relation to their terms and conditions of employment (s.319(3)(b)). In particular, the effect of the order is to ensure that the non-transferring employees are engaged under the Agreement, which is superior to the relevant modern award that may otherwise apply. The nominal expiry date of the Agreement is 11 August 2028. This means that the Agreement is current and has recently been accepted by the Commission as being better off overall than the relevant modern award (s.319(3)(c)); UGL RS submitted there would be a negative impact on productivity, if the order was not made. It was submitted in the absence of an order that any non-transferring employees would be engaged under the relevant modern award and the transferring employees would be engaged under the superior Agreement. It was submitted that having the two groups of employees on different terms and conditions would have a flow on negative impact on productivity. I accept those submissions (s.319(3)(d)); UGL RS submitted that it would incur economic disadvantage if the order was not made because it would need to set up payment systems for the relevant modern award, which it does not currently have. The criteria in s.319(3)(e) does not concern the effect on the order not being made. It concerns the effect of the Agreement (i.e. the transferable instrument) covering the new employer (UGL RS). The Agreement already covers UGL RS as a result of Division 2 of Part 2-8 of the FW Act (in respect of the transferring employees). As such, s.319(3)(e) is a neutral consideration; I accept UGL RS' submissions as to business synergy (s.319(3)(f)); I do not consider this application engages the public interest in any way. It concerns UGL RS and the non-transferring employees (s.319(3)(g)).

[7] Having taken into account each of the matters set out at section 319(3) of the FW Act and weighed those matters both individually and collectively, I am satisfied that the order should be made. An order, which will come into operation on 30 March 2026, will be issued separately to this decision.

Printed by authority of the Commonwealth Government Printer