Australian Rail, Tram and Bus Industry Union

[2019] FWCA 7809

[2019] FWCA 7809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Australian Rail, Tram and Bus Industry Union
(AG2019/4171)

VICTORIAN LOCOMOTIVE DIVISION OFFICE ADMINISTRATIVE STAFF ENTERPRISE AGREEMENT-2019-2023

Rail industry
COMMISSIONER LEE	MELBOURNE, 15 NOVEMBER 2019

Application for approval of the Victorian Locomotive Division Office Administrative Staff Enterprise Agreement-2019-2023.

[1] An application has been made for approval of an enterprise agreement known as the Victorian Locomotive Division Office Administrative Staff Enterprise Agreement-2019-2023. (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by the Australian Rail, Tram and Bus Industry Union. The Agreement is a single enterprise agreement.

[2] I note that the employer’s statutory declaration in support of the application for approval of an enterprise agreement (F17) indicates that employees were notified of the details of the vote at a meeting held on 7 October 2019. I note that the vote commenced less than seven clear days later, on 14 October 2019. Also relevant is the fact that the F17 states that all employees that will be covered by the Agreement cast a valid vote to approve the Agreement. In Construction, Forestry, Maritime, Mining and Energy Union and Ors v CBI Constructors Pty Ltd, 1  the Full Bench confirmed that an employer must take all reasonable steps to notify relevant employees of the time, place and method of the vote at least seven clear days before the commencement of the vote, pursuant to s.180 (3) of the Act. Although it does not appear that employees were notified of the time, place and method of the vote seven clear days before the commencement of the vote, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor procedural error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error.2

[3] I note that the Notice of employee representational rights (Notice) provided to the employees is an earlier version of the Notice which has since been superseded. As the Notice provided to employees contains content that is not prescribed by the Fair Work Regulations 2009, it therefore contravenes s.174 (1A) of the Act. However, I refer to s.188 (2) of the Act and am satisfied that this error constitutes a minor technical error, and that employees covered by this Agreement are not likely to be disadvantaged as a result of the error. 3 

[4] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[5] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 12 – Annual Leave

•  Clause 13 – Personal Leave

However, noting clause 4 (b) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2019. The nominal expiry date of the Agreement is 30 June 2023.

COMMISSIONER

 1   [2018] FWCFB 2732.

 2   Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others [2019] FWCFB 318.

 3   Ibid.

Printed by authority of the Commonwealth Government Printer

<AE506104  PR714312>