DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Coalemp No 3 Pty Ltd T/A Southern Shorthaul Railroad
(AG2019/2359)

SOUTHERN SHORTHAUL RAILROAD ENTERPRISE AGREEMENT 2019

Rail industry
COMMISSIONER LEE	MELBOURNE, 12 SEPTEMBER 2019

Application for approval of the Southern Shorthaul Railroad Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Southern Shorthaul Railroad Enterprise Agreement 2019 (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.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

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

[4] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] The Australian Rail, Tram and Bus Industry Union 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) I note that the Agreement covers the organisation.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 September 2019. The nominal expiry date of the Agreement is 11 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, the case of Coalemp No 3 Pty Ltd T/A Southern Shorthaul Railroad involved a dispute regarding the approval of the Southern Shorthaul Railroad Enterprise Agreement 2019. The applicant, Southern Shorthaul Railroad, sought approval of the agreement from the Commission. The matter was heard by Deputy President J A C Wilson, who was tasked with determining whether the agreement met the necessary criteria for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the Enterprise Agreement contained provisions that were contrary to the provisions of the Fair Work Act, particularly in relation to the requirements for an enterprise agreement to be approved. The agreement had been registered with the Fair Work Commission, and the Commission was required to examine the contents of the agreement to ensure it complied with the Act. The applicant argued that the agreement was fair and reasonable and should be approved.

In delivering his decision, Deputy President J A C Wilson examined the provisions of the Fair Work Act and considered the arguments presented by both parties. The Deputy President found that the agreement contained provisions that were contrary to the Act, specifically in relation to the requirement for the agreement to provide for a mechanism for the resolution of disputes. As a result, the Deputy President determined that the agreement could not be approved in its current form. However, the Deputy President also noted that the parties had an opportunity to negotiate and reach an agreement that complied with the Act. The Deputy President declined to approve the agreement but encouraged the parties to continue negotiations with a view to reaching an agreement that complied with the requirements of the Act.

In conclusion, the Fair Work Commission declined to approve the Southern Shorthaul Railroad Enterprise Agreement 2019 due to provisions that were contrary to the Fair Work Act. The Commission encouraged the parties to continue negotiations with a view to reaching an agreement that complied with the Act. No further orders were made by the Commission.

Coalemp No 3 Pty Ltd T/A Southern Shorthaul Railroad

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established