Aurizon Operations Limited

[2021] FWCA 7194

[2021] FWCA 7194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Aurizon Operations Limited
(AG2021/8719)

AURIZON NSW COAL OPERATIONS ENTERPRISE AGREEMENT 2021

Rail industry
DEPUTY PRESIDENT COLMAN	MELBOURNE, 20 DECEMBER 2021

Application for approval of the Aurizon NSW Coal Operations Enterprise Agreement 2021

[1] Aurizon Operations Limited has made an application for approval of an enterprise agreement known as the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement) pursuant to s 185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] While the application is generally in order, the employees were not provided with the voting instructions or a copy of the agreement seven clear days before the vote. However, in all the circumstances, and having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, 1 I am satisfied that these constitute minor procedural or technical errors for the purposes of s 188(2)(a), and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s 188(2) of the Act.

[3] The employer has provided a written undertaking, a copy of which is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that it will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the Agreement.

[4] Subject to the undertaking referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval has been met.

[5] Pursuant to s 202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The Australian Rail, Tram and Bus Industry Union (RTBU), 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) and based on its declaration, I note that the Agreement covers the RTBU.

[7] The Agreement was approved on 20 December 2021 and, in accordance with s 54, will operate from 27 December 2021. The nominal expiry date of the Agreement is 10 November 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2019] FWCFB 318

Annexure A