Concept Engineering (Aust) Pty Ltd

[2022] FWCA 1128

[2022] FWCA 1128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Concept Engineering (Aust) Pty Ltd

(AG2022/656)

Concept Engineering Rail Safety Observer Enterprise Agreement 2021 – 2025

Rail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 31 MARCH 2022

Application for approval of the Concept Engineering Rail Safety Observer Enterprise Agreement 2021 – 2025.

1. Concept Engineering (Aust) Pty Ltd has applied for approval of a single enterprise agreement known as the Concept Engineering Rail Safety Observer Enterprise Agreement 2021 – 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

1. Since the application was made, the Commission raised concerns about whether the pre-approval requirements were met and whether the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the “better off overall” test. Further information and evidence was provided in relation to these concerns.

1. The Applicant sought to correct a typographical error in the original application. These amendments were not opposed by the bargaining representative. In the circumstances, I am satisfied that these amendments should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

1. The cohort of employees identified on the Applicant’s statutory declaration as covered by the Agreement at the time of the vote included a number of casual employees. The Applicant provided further evidence (which was not opposed) to satisfy the Commission that:

a)all employees, who were employed at the relevant time(s)[1] and covered by the Agreement, were requested to vote; and

b)of the employees who were requested to vote, a proportion of casual employees did not work a shift in the relevant period, however even if those employees had cast a vote it would have been immaterial to the outcome.

1. I am satisfied, on the evidence before the Commission, that the impact of the Applicant requesting a broader than strictly eligible cohort of employees to vote was immaterial and does not prevent approval by the Commission.[2]

1. The model consultation term prescribed by the Fair Work Regulations 2009 (Cth) (the Regulations) is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

1. Noting clause 6 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

1. A written undertaking was given in accordance with s.190 of the Act and is attached at Annexure A (Undertaking). The bargaining representative did not oppose the Undertaking. I am satisfied that the Undertaking will not cause financial detriment to any employee covered by the Agreement and that the Undertaking will not result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertaking is taken to be a term of the Agreement.

1. On the basis of the material contained in the application, further information provided on request of the Commission and the Undertaking, 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.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

1. The Agreement was approved on 31 March 2022 and, in accordance with s.54, will operate from 7 April 2022. The nominal expiry date of the Agreement is 31 March 2025.

DEPUTY PRESIDENT

Annexure A

[1]  Appeal by SDA and others [2019] FWCFB 7891.

[2]  National Tertiary Education Industry Union v Swinburne University of Technology [2015] FCAFC 98.

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