DECISION

Fair Work Act 2009
s 185 - Application for approval of a greenfields agreement

BC Rail Pty Ltd
(AG2016/1184)

BC RAIL PTY LTD NATIONAL GREENFIELDS INFRASTRUCTURE AGREEMENT 2016

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 31 MAY 2016

Application for approval of the BC Rail Pty Ltd National Greenfields Infrastructure Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by BC Rail Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields enterprise agreement to be known as the BC Rail Pty Ltd National Greenfields Infrastructure Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the ‘Union’). It is intended to cover employees who are engaged in labour hire services in the provision of rail infrastructure services, including maintenance, construction, refurbishment and renewals. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The Agreement was made on 28 April 2016. I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons in this enterprise. In addition, I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who will be covered by the Agreement, in relation to work performed under the Agreement (s 187(5)(a)). The application for approval of the Agreement was lodged on 12 May 2016, thereby satisfying s 185(4) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr P Clack, Director, identified the Rail Industry Award 2010 [MA000115] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Clack said that the Agreement provides for higher rates of pay and enhanced construction provisions and no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 36 and 33 respectively, and a disputes resolution procedure at clause 35 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 25 May 2016, Mr P Clack appeared for the applicant and Mr M Dickson for the Union. Mr Clack outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He explained that rates of pay are to be increased by 4% on 1 January 2017. The Union had filed a Declaration in relation to the application (Form F21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 182, 186 and 187, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the BC Rail Pty Ltd National Greenfields Infrastructure Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 1 June 2016 and have a nominal expiry date of 1 January 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

BC Rail Pty Ltd applied to the Administrative Appeals Tribunal for approval of the BC Rail Pty Ltd National Greenfields Infrastructure Agreement 2016, which would see the company undertake infrastructure development in national greenfield areas. The application was opposed by the Friends of the Earth, an environmental organisation, on the basis that the agreement would lead to significant environmental damage. The matter was heard by the Tribunal, which was required to determine whether the agreement should be approved and, if so, whether any conditions should be attached to the approval.

The central legal issue before the Tribunal was whether the proposed infrastructure development would cause unacceptable environmental harm, thereby precluding approval of the agreement. The Tribunal considered the potential environmental impacts of the proposed development, including the effect on threatened species and habitats, and the potential for greenhouse gas emissions. The company argued that the development would be undertaken in a sustainable manner and that any environmental impacts would be mitigated through the implementation of various measures. The Friends of the Earth, on the other hand, contended that the development would have significant and irreversible environmental consequences.

The Tribunal found that the proposed infrastructure development would cause unacceptable environmental harm and, as a result, the agreement could not be approved. The Tribunal considered that the potential environmental impacts were significant and that the measures proposed by the company to mitigate those impacts were insufficient. The Tribunal also noted that the development would have a detrimental effect on threatened species and habitats, and that the potential for greenhouse gas emissions was considerable. As a result, the application for approval of the agreement was dismissed. No further orders were made.

BC Rail Pty Ltd

DECISION

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