Coalemp No. 3 Pty Ltd T/A Southern Shorthaul Railroad

[2024] FWCA 1817

[2024] FWCA 1817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Coalemp No. 3 Pty Ltd T/A Southern Shorthaul Railroad

(AG2024/1440)

SOUTHERN SHORTHAUL RAILROAD ENTERPRISE AGREEMENT 2023

Rail industry
COMMISSIONER YILMAZ	MELBOURNE, 17 MAY 2024

Application for approval of the Southern Shorthaul Railroad Enterprise Agreement 2023

1. An application has been made for approval of an enterprise agreement known as the Southern Shorthaul Railroad Enterprise Agreement 2023 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Coalemp No. 3 Pty Ltd T/A Southern Shorthaul Railroad. The Agreement is a single enterprise agreement.

1. I am satisfied that each of the requirements of ss.186, 187 and 188 are relevant to this application for approval and have been met. The Agreement does not cover all of the employees of the employer, however, taking into account the factors in ss.186(3) and (3A) I am satisfied that the group of employees was fairly chosen.

1. The Australian Rail, Tram and Bus Industry Union (RTBU) are union bargaining representatives to the Agreement and filed a Form F18 advising the Commission that they do not support approval of the Agreement, nor does it want the Agreement to cover it per s.183 of the Act. Furthermore, the RTBU raised concerns with clause 2.2 of the Agreement which stated the Agreement is to be binding on the union. The RTBU submits that by including the RTBU in clause 2.2 it is misleading as it implies the RTBU endorses and/or is a party to the Agreement whereas the RTBU states it has at all times opposed making of the Agreement and does not want to be covered by it.

1. In resolution of RTBU’s objections, the Applicant requested the Commission use its discretion pursuant to s.218A of the Act to make a correction to the Agreement by removing the RTBU from clause 2.2. I observe the RTBU agree with the proposed correction in resolution of its objection. Section 218A(1) provides that the Commission  may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form). Accordingly, I am satisfied that the amendment to remove the RTBU in clause 2.2 should be made and that it is appropriate to do so pursuant to s.218A(2)(b). The Applicant filed an amended version of the Agreement and per s.218(3) of the Act, the variation is effective from the date of this decision. I therefore amend clause 2.2 to state “This Agreement shall be binding upon the Company and each Employee utilised from time-to-time by the Company to perform work within the States listed in clause 2.1 and covered by the classifications detailed in this Agreement”.  

1. The Agreement is approved and in accordance with s.54, will operate from 24 May 2024. The nominal expiry date of the Agreement is 16 May 2028.

COMMISSIONER

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