Australian Rail Track Corporation Ltd

[2018] FWCA 641

[2018] FWCA 641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.225 - Application for termination of an enterprise agreement after its nominal expiry date

Australian Rail Track Corporation Ltd
(AG2017/6683)

AUSTRALIAN RAIL TRACK CORPORATION ENTERPRISE AGREEMENT 2014

AE409581

Rail industry
COMMISSIONER HAMPTON	ADELAIDE, 31 JANUARY 2018

Application for termination of the Australian Rail Track Corporation Enterprise Agreement 2014.

[1] This decision concerns an application by Australian Rail Track Corporation Ltd (ARTC) pursuant to s.225 of the Fair Work Act 2009 (the Act). The application seeks to terminate the Australian Rail Track Corporation Enterprise Agreement 2014.¹ The Agreement is an enterprise agreement made and approved under the Act with a nominal expiry date of 22 August 2017.

[2] The Act relevantly provides as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.

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.

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[3] This matter was the subject of a hearing by telephone on 31 January 2018 at which time I heard from Mr Stephen Jauncey, who appeared with permission on behalf of the ARTC. The ARTC also relied upon a statutory declaration provided by Mr Nathan Farr, its General Manager People, which accompanied the application, and a subsequent statement provided by Ms Merrilyn Beer, Employment Relations Analyst.

[4] The Commission also has before it correspondence from the three employee organisations covered by the Agreement. In the case of the Australian Rail, Tram and Bus Industry Union and the Australian Municipal, Administrative, Clerical and Services Union, both unions indicated that they did not oppose the termination application. The Australian Workers’ Union indicated that it did not have members covered by the Agreement and also did not seek to be heard on the application.

[5] The circumstances of this application include that Agreement has been superseded with a new enterprise agreement 2 for almost all of the relevant employees. However, a relatively small group of employees, comprising managers holding various senior positions, were excluded by agreement from the scope of the new enterprise agreement. Further, appropriate arrangements have now been put into place, consistent the nature of those positions, which ensure the protection of their existing arrangements.

[6] The applicant employer is entitled to apply for the termination of the Agreement pursuant to s.225 of the Act.

[7] It is also evident that the employees who are presently subject to the Agreement support its termination. Indeed, all 55 employees who remain covered by the Agreement have given written consent to this application. In addition, a notice of listing was issued by the FWC with a direction that it be made available to all relevant employees and this listing invited employees with concerns to contact the Commission. No concerns have been raised.

[8] I am satisfied that the termination of the Agreement would not be contrary to the public interest. I am also satisfied that the termination is appropriate having regard to the likely effect of that action and the circumstances and views of the employees, the employer and the employee organisations. Given these findings, under the terms of s.226 of the Act, the Commission was obliged to terminate the Agreement.

[9] The termination will take effect from midnight, 31 January 2018.

COMMISSIONER

Appearances:

S Jauncey (of counsel) with permission, with M Beer, for Australian Rail Track Corporation Ltd.

1 AE409581.

 2   Australian Rail Track Corporation Enterprise Agreement 2017 [2017] FWCA 3797.

Printed by authority of the Commonwealth Government Printer

<AE409581, PR599963>