Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia

[2021] FWCA 5513

[2021] FWCA 5513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia
(AG2021/6953)

DRY CREEK RAIL CAR DEPOT ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 SEPTEMBER 2021

Application for approval of the Dry Creek Rail Car Depot Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Dry Creek Rail Car Depot Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 September 2021 and was determined on the papers.

[3] There is one National Employment Standards (NES) issue that requires comment:

•  Clause 34.4 of the Agreement deals with abandonment of employment and allows the employer to terminate an employee at the date in which the company notifies the employee that abandonment of employment has been deemed to have occurred. This may be inconsistent with s.117 of the Act, which requires an employer to give an employee written notice of termination or payment in lieu of notice which is equivalent to the minimum period of notice as set out in s.117 of the Act.

[4] Clause 3 of the Agreement contains an effective NES precedence clause, in that it states that the Agreement is read and interpreted in conjunction with the NES, and where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[5] As a result of the NES precedence clause, clause 34.4 will not apply to the extent that it is inconsistent with the NES.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, despite clause 5 of the Agreement and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 June 2024.

COMMISSIONER

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