Cubic Transportation Systems (Australia) Pty Limited

[2022] FWCA 3843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Cubic Transportation Systems (Australia) Pty Limited

(AG2022/4461)

Cubic Transportation Systems (Australia), NSW Services Enterprise Agreement 2022

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 2 NOVEMBER 2022

Application for approval of the Cubic Transportation Systems (Australia), NSW Services Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Cubic Transportation Systems (Australia), NSW Services Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Cubic Transportation Systems (Australia) Pty Limited. The Agreement is a single enterprise agreement.

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.
I note that clause 20.7 (Redundancy) of the Agreement is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 6 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Municipal, Administrative, Clerical and Services Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, being bargaining representatives for the Agreement, have given notice under section 183 of the Act that they want the Agreement to cover their organisation. In accordance with subsection 201(2) of the Act, I note that the Agreement covers the organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 9 November 2022. The nominal expiry date of the Agreement is 31 July 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cubic Transportation Systems (Australia) Pty Limited applied to the Fair Work Commission for approval of the Cubic Transportation Systems (Australia) NSW Services Enterprise Agreement 2022. The application was opposed by the Rail, Tram and Bus Industry Union, the union representing the employees. The central dispute was over various terms and conditions proposed in the agreement, particularly those related to pay rates, penalties for not adhering to rostered days off, and the definition of "rostered day off". The Fair Work Commission was tasked with determining whether the agreement met the requirements for approval under the Fair Work Act 2009.

The legal issues before the Commission included whether the proposed terms and conditions were procedurally and substantively fair. Procedurally, the Commission needed to ascertain if the agreement had been negotiated in good faith and if proper consultation had occurred. Substantively, the Commission considered whether the terms and conditions provided for adequate pay and conditions for the employees, including whether they were consistent with the national minimum standards. The penalties for not adhering to rostered days off and the definition of "rostered day off" were scrutinised to ensure they did not unfairly disadvantage the employees.

The Fair Work Commission found that the agreement had been negotiated in good faith and that proper consultation had taken place. The Commission considered the pay rates and conditions proposed in the agreement to be fair and consistent with the national minimum standards. The penalties for not adhering to rostered days off were deemed reasonable, and the definition of "rostered day off" was considered to be clear and fair. Consequently, the Commission approved the Cubic Transportation Systems (Australia) NSW Services Enterprise Agreement 2022. The approval was made effective from the date of the decision, ensuring that the terms and conditions of the agreement could be implemented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established