Adelaide Metro Operations Pty Ltd

[2021] FWCA 7165

[2021] FWCA 7165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Adelaide Metro Operations Pty Ltd
(AG2021/8679)

ADELAIDE METRO OPERATIONS INFRASTRUCTURE EMPLOYEES ENTERPRISE AGREEMENT 2022

Rail industry
COMMISSIONER PLATT	ADELAIDE, 17 DECEMBER 2021

Application for approval of the Adelaide Metro Operations Infrastructure Employees Enterprise Agreement 2022

[1] An application has been made for approval of an enterprise agreement known as the Adelaide Metro Operations Infrastructure Employees Enterprise Agreement 2022 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Adelaide Metro Operations Pty Ltd (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 14 December 2021 and was determined on the papers.

[3] There are two National Employment Standards (NES) issues that require comment:

•  Clause 13.2.2 of the Agreement provides that if an employee fails to give notice, the company has the right to withhold monies due to the employee. We note that Clause 13.2.2 does not appear to limit the source of monies which may be deducted. Clause 13.2.2 of the Agreement will be inconsistent with the NES to the extent that it permits the employer to withhold monies owing to the employee under the NES (such as accrued but unused annual leave or long service leave on termination).

•  Clause 13.3.1 of the Agreement appears to state that if an employee is absent for a period of three days without the consent of the company and without notification to the company, it will be evidence that the employee has abandoned their employment. Clause 13.3.3 of the Agreement states the termination shall operate from the last attendance at work or the last day’s absence in respect of which was granted, or the date of the last absence in respect of which notification was given to the company, whichever is later. It is unclear whether employees receive notice of termination and as such this appears to be inconsistent with s.117 of the Act

[4] Clause 4.3 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause (and confirmed by the undertakings), the above clauses will not apply to the extent that they are inconsistent with the NES.

[5] The Applicant has submitted an undertaking in the required form dated 15 December 2021. The undertaking deals with the following topics:

•  The nominal expiry date of the Agreement will be four years from the date the Agreement is approved.

•  Clause 9 of the Agreement will be read in conjunction with clause 30.7 of the Rail Industry Award 2020 (the Award) and s.186(6)(b) of the Act, such that a party to a dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 9 of the Agreement.

•  The company has confirmed that the NES precedence clause will apply to clauses 13.2.2 and 13.3.1-13.3.3 of the Agreement.

•  “Adult Apprentices – Year 1” shall be paid $18.94 from commencement of the Agreement and shall be paid no less than the relevant rate of pay in the Award for the duration of the Agreement.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

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

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 17 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE514328  PR736850>