Aurizon Port Services Pty Ltd T/A Aurizon Port Services Pty Ltd

[2023] FWCA 2719

[2023] FWCA 2719 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Aurizon Port Services Pty Ltd T/A Aurizon Port Services Pty Ltd

(AG2023/2779)

AURIZON PORT SERVICES TOWNSVILLE DEPOT ENTERPRISE AGREEMENT 2023

Road transport industry
COMMISSIONER LIM	PERTH, 30 AUGUST 2023

Application for approval of the Aurizon Port Services Townsville Depot Enterprise Agreement 2023

1. Aurizon Port Services Pty Ltd has made an application for the approval of an enterprise agreement known as the Aurizon Port Services Townsville Depot Enterprise Agreement 2023 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (the Amending Act) made several changes to enterprise agreement approval processes in Part 2-4 of the Act, which commenced operation on 6 June 2023.

1. Under transitional arrangements, amendments made by Part 14 of Schedule 1 to the Amending Act in relation to genuine agreement requirements for agreement approval applications apply where the notification time for the agreement was on or after 6 June 2023. The genuine agreement provisions in Part 2-4 of the Act, as it was before 6 June 2023, continue to apply in relation to agreement approval applications where the notification time for the agreement was before 6 June 2023. The notification time for the Agreement was 31 May 2023.

1. On the basis of the material contained in the application and accompanying declarations, I am satisfied that each of the requirements of ss 186, 187 and 188 of the Act as are relevant to this application for approval have been met.

1. Clause 11.5 of the Agreement provides that in the case of termination, if an employee fails to work the required or agreed notice, the Company may withhold from any monies due to the employee on termination, the wages equivalent of the notice not worked. I note that this clause does not appear to limit the source of monies which may be deducted. This clause appears to permit the employer to withhold monies owing to the employee under the NES. This raises the issue that this clause may be inconsistent with Chapter 2 Part 2.2 Division 2 of the Act. However, noting clause 4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Rail, Tram and Bus Union (the 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 the declaration provided by the organisation, I note that the organisation is covered by the Agreement.

1. The Agreement was approved on 30 August 2023 and, in accordance with s 54, will operate from 5 September 2023. The nominal expiry date of the Agreement is 30 August 2027.

COMMISSIONER

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