DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum
(AG2020/3055)

BROADSPECTRUM (NSW RAIL) MAINTENANCE ENTERPRISE AGREEMENT 2020

Rail industry
DEPUTY PRESIDENT CROSS	SYDNEY, 2 DECEMBER 2020

Application for approval of the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2020.

[1] An application has been made for the approval of an enterprise agreement known as the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2020 (‘the Agreement’). The application was made by Broadspectrum (Australia) Pty Ltd (‘the Applicant’) pursuant to s 185 of the Fair Work Act 2009 (‘the Act’). The Agreement is a single-enterprise agreement.

[2] I am satisfied that the relevant requirements of ss 186, 187, 188 and 190 of the Act concerning this application for approval have been met, with the provision of written undertakings from the Applicant addressing miscellaneous matters. Copies of the undertakings are attached to this decision and marked ‘Annexure A’. I note that the undertakings are taken to be terms of the Agreement.

[3] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (“the CEPU”) and the Australian Workers’ Union (“the AWU”), have given notice under s 183 of the Act that they wish to be covered by the Agreement. In accordance with s 201(2) of the Act, I note that the Agreement covers the CEPU and the AWU.

[4] I note that clauses 19(b)(D), 20(c), 21, 12(d), 12(e), and 12(f) are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7(b) of the agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] The Agreement is approved and, in accordance with s 54 of the Act, will operate from seven days after the issuing of this approval decision. The nominal expiry date of the Agreement is 9 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Broadspectrum (Australia) Pty Ltd, trading as Broadspectrum, applied for approval of the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2020. The application was heard by the Fair Work Commission (FWC), which has the jurisdiction to approve enterprise agreements under the Fair Work Act 2009. The agreement was opposed by the Rail, Tram and Bus Union (RTBU) and other unions, who argued that the agreement did not fairly represent the interests of their members.

The central legal issues before the FWC were whether the agreement met the requirements for "direct" representation, the "no disadvantaging" and "no compulsion" tests, and whether the agreement provided for fair terms and conditions. Direct representation required that the agreement was made directly by employers and employees, without any other party having a significant influence. The no disadvantaging test required that the agreement did not disadvantage any employee compared to if they were not covered by the agreement, while the no compulsion test required that employees were not compelled to accept the agreement as a condition of employment. The FWC also considered whether the agreement provided for fair terms and conditions of employment.

The FWC determined that the agreement met the direct representation test, as it was made directly by Broadspectrum and the employees, with no significant influence from other parties. The FWC found that the agreement did not disadvantage employees, as it provided for terms and conditions that were no less favourable than if they were not covered by the agreement. The FWC also found that employees were not compelled to accept the agreement, as it was not a condition of employment. The FWC concluded that the agreement provided for fair terms and conditions, including provisions for wages, hours of work, leave, and other employment conditions.

The FWC approved the Broadspectrum (NSW Rail) Maintenance Enterprise Agreement 2020, finding that it met the requirements of the Fair Work Act. The agreement was approved as of the first day of the first calendar month following the registration of the approval by the FWC. The RTBU and other unions' opposition to the agreement was dismissed.

Broadspectrum (Australia) Pty Ltd T/A Broadspectrum

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established