Broadspectrum Australia Pty Ltd

[2016] FWCA 2670

[2016] FWCA 2670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185—Enterprise agreement

Broadspectrum Australia Pty Ltd
(AG2016/847)

BROADSPECTRUM (NSW RAIL) MAINTENANCE ENTERPRISE AGREEMENT 2016

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 2 MAY 2016

Application for approval of the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Broadspectrum Australia Pty Ltd (‘the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields agreement to be known as the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the 'Union'). The Agreement is to cover prospective employees to be engaged by the applicant to perform work in relation to rail maintenance in New South Wales. 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 6 April 2016 (s 182(3)). I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons. 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 8 April 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer's Declaration in support of the application (Form F20) Mr L Cruwys identified the Rail Industry Award 2010 [MA000015] (the ‘Award’) as the relevant reference instrument for the purposes of the Better Off Overall Test (the 'BOOT'). Mr Cruwyssaid that the Agreement does provide for one condition that is less beneficial than the Award, being a reduction of penalty rates for overtime work performed on Monday to Friday. However, the Agreement provides for significantly higher rates of pay and a more beneficial term which provides notice period for termination of employment in excess of the Award. I note that the Agreement provides a 2% increase to wages per annum on each anniversary of the Agreement during its nominal term. On balance, I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 30 and 29 respectively, and a disputes resolution procedure at clause 8 provides for conciliation and arbitration by the Commission.

[4] The Union has filed a Declaration in relation to the application (Form 21) 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 reviewed the parties’ filed materials 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 186 and 187, in so far as relevant to this application, have been met. Pursuant to s 187(5)(b) of the Act, I am further satisfied that it is in the public interest to approve this Agreement. Accordingly, I approve a single-enterprise greenfields agreement known as the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2016. Pursuant to s 54 of the Act, the Agreement shall operate from 28 April 2016 and have a nominal expiry date of 20 February 2020.

DEPUTY PRESIDENT

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