Aurizon Bulk Central Pty Ltd T/A Aurizon

[2024] FWCA 3208

[2024] FWCA 3208

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Aurizon Bulk Central Pty Ltd T/A Aurizon

(AG2024/3072)

Rail industry
COMMISSIONER THORNTON	ADELAIDE, 4 OCTOBER 2024

Application for approval of the Aurizon Bulk Central Rail Operations Enterprise Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Aurizon Bulk Central Rail Operations 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 Aurizon Bulk Central Pty Ltd T/A Aurizon (the Applicant). The Agreement is a single enterprise agreement.

1. The Notice of Employee Representational Rights (NERR) provided to the employees included a minor technical error. The omission from the NERR of the classifications in the Terminal/Yard Stream is a minor technical error made in relation to the requirements of s.174(1A). I am satisfied that the Agreement would have been genuinely agreed to but for the slight departure from the NERR requirements in s.174(1A)(c) and that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188 of the Act and exercise the discretion conferred by section 188(5) of the Act to disregard the minor technical error.

1. The copy of the Agreement filed with the application contained a signature page that did not meet the requirements under s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was later provided upon request by the Commission that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to amend the Agreement pursuant to s.586 of the Act to allow for the amended signature page to be inserted.

1. The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

1. Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187, 188 and 190 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

1. The Applicant has provided an undertaking that should there be any inconsistency between the Agreement and the NES, and where the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. Noting the undertakings provided, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

1. The Commission raised a concern about the application of the better off overall test in respect of part-time employees who work hours beyond their agreed hours and are only entitled to be paid over-time when the additional hours exceed ordinary hours for a full-time employee. Pursuant to sections 193(6) and (6A) of the Act, I have had regard to the submissions of the Employer that patterns of work which may cause part-time employees working hours in addition to their agreed hours to be better off under the Award are not reasonably foreseeable. I accept the submissions of the Employer. For completeness I note the terms of section 227A of the Act that allows the Commission, in certain circumstances, to reconsider whether the Agreement passes the better off overall test if there are changes to the patterns of work at a later time.

1. The Australian Rail, Tram and Bus Industry Union (ARTBU) lodged a Form F18 statutory declaration giving 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 the Agreement covers the ARTBU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act from 11 October 2024. The nominal expiry date of the Agreement is 31 December 2025.

COMMISSIONER

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