Activaterail Pty Ltd

[2021] FWCA 7114

[2021] FWCA 7114

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Activaterail Pty Ltd
(AG2021/8191)

ACTIVATERAIL AND RTBU SAFEWORKING AGREEMENT 2021

Rail industry
DEPUTY PRESIDENT EASTON	SYDNEY, 14 DECEMBER 2021

Application for approval of the ActivateRail and RTBU Safeworking Agreement 2021.

[1] Activaterail Pty Ltd (the Employer) has made an application for the approval of the ActivateRail and RTBU Safeworking Agreement 2021 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

[3] Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

[4] I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):

● Clause 2.9(b) and (c) – Casual Conversion

● Clause 2.10.3 – Termination of Employment

● Clause 8.2.1 – Redundancy – Employees Exempted

● Clause 16.1.4 and 16.1.7 – Public Holidays

[5] Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Australian Rail, Tram and Bus Industry Union (RTBU) was a bargaining representative for the Agreement and has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the RTBU.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 December 2021. The nominal expiry date of the Agreement is 30 June 2024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A