Bowmans Rail Pty Ltd

[2021] FWCA 2117

[2021] FWCA 2117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bowmans Rail Pty Ltd
(AG2021/4399)

BOWMANS RAIL TRAIN CREW ENTERPRISE AGREEMENT 2020

Rail industry
COMMISSIONER PLATT	ADELAIDE, 19 APRIL 2021

Application for approval of the Bowmans Rail Train Crew Enterprise Agreement 2020

[1] An application has been made for approval of an enterprise agreement known as the Bowmans Rail Train Crew Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bowmans Rail Train Crew Enterprise Agreement 2020 (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 7 April 2021.

[3] On 9 April 2021, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 15 April 2021. The undertaking deals with the following topics:

•  The employer will not make deductions to payments owed to employees in the circumstance that an employee fails to return company items upon termination of employment. The monetary value of the items not returned will be an amount owed to the employer by the employee.

•  In order to be consistent with the National Employment Standards (NES), employees will be required to notify the employer of personal leave absences as soon as practicable, which may be a time after the leave has started, and any evidence provided by an employee to support the taking of personal leave will be evidence that would satisfy a reasonable person in accordance with s.107(3) of the Act.

•  If an employee is made redundant and alternative employment is offered, the employer can make an application to the Fair Work Commission to vary the entitlement of redundancy pay in accordance with s.120(2) of the Act.

[5] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement.

[6] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[8] The Australian Rail, Tram and Bus Industry Union (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) of the Act I note that the Agreement covers this organisation.

[9] 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.

[10] The Agreement is approved 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 30 June 2023.

COMMISSIONER

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