Antony Thompson; Craig Eddy; Mathew Deverell; Rajesh Dokania; Anthony Moretta; James Betti; Joseph Colija; Sajaul Karim; Daniel Owen; Deepu Narikkattu

[2019] FWCA 8354

[2019] FWCA 8354

FAIR WORK COMMISSION

DECISION

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Antony Thompson; Craig Eddy; Mathew Deverell; Rajesh Dokania; Anthony Moretta; James Betti; Joseph Colija; Sajaul Karim; Daniel Owen; Deepu Narikkattu
(AG2019/4245)

BERKLEY RAILCAR AGREEMENT

Cleaning services
COMMISSIONER WILLIAMS	PERTH, 10 DECEMBER 2019

Application for termination of the Berkley Railcar Agreement.

[1] This decision concerns an application for the termination of the Berkley Railcar Agreement (the Agreement). The Agreement is a Collective Agreement – Based Transitional Instrument which has passed its nominal expiry date. The Applicants are 11 employees to whom the Agreement applies. The Respondent is Berkley Railcar Services Pty Ltd.

[2] By virtue of item 16 of Schedule 3 of the Fair Work (Transitional Provisions and Consequential Amendments Act) 2009 section 225 and 226 of the Fair Work Act 2009 (the Act) apply as if a reference to an enterprise agreement in those sections included a reference to a Collective Agreement – Based Transitional Instrument.

[3] Each of the Applicants have provided a statutory declaration in relation to termination of the Agreement. Each of these declaration states that the Agreement terms and conditions are less beneficial than those provided for in the Cleaning Services Award 2010 (the Award). It is also stated that it is in the public interest that workers are paid at least the statutory minimum wage and that the Agreement stands outside the current legislative framework. The declaration states the Agreement provides the Respondent with a competitive advantage over other companies paying the statutory minimum and this is not in the public interest.

[4] The declaration states the Agreement would fail the better off overall test, the statutory minimum for a new enterprise agreement.

[5] The declaration states the effect of terminating the Agreement on the employees would be that they would receive an increase in their pay and be covered by the Award. This would impact on their base rates of pay, overtime, shift work and annual leave. It is declared that presently the employees are each paid less in all of these areas compared to the Award.

The legislation

[6] Section 226 which is set out below specifies the mattes the Commission must have regard for when deciding whether the Agreement should be terminated.

“226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

Consideration

[7] The Commission convened a conference of the parties on Monday, 2 December 2019. Nine of the Applicants attended and were represented by their union, the Australian Rail, Tram and Bus Union, WA Branch (the Union).

[8] The nine Applicants indicated to the Commission that they supported the application to terminate the Agreement.

[9] Subsequently, the Union has on the 2 and 5 of December 2019, conducted site visits in order to speak to the other employees covered by the Agreement regarding the application to terminate the Agreement. The Union spoke to a further seven workers, not the Applicants, and these seven indicated they were supportive of the Agreement being terminated. The Union estimates they spoken now to more than half of the employees covered by the Agreement and all are in support of the termination application. The Union further advises that no employee covered by the Agreement has spoken to them, not favouring the termination of the Agreement.

[10] For its part the Respondent advised the Commission that it is generally supportive of the application to terminate the Agreement however, it does not accept that termination will increase the base rate of pay for employees to whom the Agreement applies. This is because the operation of section 206 of the Act has ensured the Respondent has maintained base rates of pay practice that are not less than the rates for equivalent classifications in the Award as varied from time to time.

[11] The Respondent in addition has provided is a written undertaking, which will be retained on the Commission's file, as follows:

“Berkley Railcar Services Pty Ltd (Company) hereby undertakes to each EMU Rolling Stock Cleaning Supervisor who on the date on which an order by the Fair Work Commission terminating the Agreement  was covered by the Agreement, that the Company will continue to provide as a minimum, the base rate of pay for the EMU Rolling Stock Cleaning Supervisor of $26.86 per hour as contained in Schedule B of the Agreement.”

[12] In the circumstances I am satisfied that it is not contrary to the public interest to terminate the Agreement.

[13] I also consider that it is appropriate to terminate the Agreement taking into account the circumstances, including that a majority of employees to whom the Agreement applies support the application, the employer supports the application and that the employees will generally be financially better off overall under the terms of the Award rather than the Agreement.

[14] Consequently, the Berkley Railcar Agreement will be terminated, and that termination will operate seven days from the date of this decision. An order to that effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

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