DSL Rail Services Pty Ltd T/A DSL Rail Services Summary

[2024] FWCA 829

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

DSL Rail Services Pty Ltd T/A DSL Rail Services

(AG2024/438)

DSL RAIL SERVICES & RTBU AGREEMENT 2023

Rail industry
COMMISSIONER MIRABELLA	MELBOURNE, 7 MARCH 2024

Application for approval of the DSL Rail Services & RTBU Agreement 2023.

DSL Rail Services Pty Ltd T/A DSL Rail Services (the Employer) has made an application for approval of an enterprise agreement known as the DSL Rail Services & RTBU Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the FW Act). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2-4 of the FW Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 14 December 2023 and the Agreement was made on 14 February 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

On the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of sections 186, 187 and 188, as are relevant to this application for approval, has been met.

I observe that clause 15.6(e) regarding notice requirements for personal leave is likely to be inconsistent with the National Employment Standards (the NES).

However, noting clause 1.4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Rail, Tram and Bus Industry Union, being a bargaining representative for the Agreement, has given notice under s.183 of the FW Act that it wants the Agreement to cover it. In accordance with s.201(2) and based on the declaration provided by the organisation, I note that the Agreement covers the organisation.

The Agreement was approved on 7 March 2024 and, in accordance with s.54, will operate from 14 March 2024. The nominal expiry date of the Agreement is 14 March 2027.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, DSL Rail Services, applied to the Federal Court of Australia for approval of an enterprise agreement titled "DSL Rail Services & RTBU Agreement 2023." The dispute arose as the applicant sought to finalise a new enterprise agreement with the Rail, Tram and Bus Union (RTBU), which would govern the terms of employment for the union's members working for DSL Rail Services. The application was made under section 231 of the Fair Work Act 2009, which requires that such agreements be approved by the Fair Work Commission before they can take effect.

The legal issues before the court involved the compliance of the proposed agreement with the requirements of the Fair Work Act. Specifically, the court had to determine whether the agreement met the necessary criteria for registration, including provisions relating to minimum wages and conditions, dispute resolution, and the protection of employee rights. The court also had to ensure that the agreement was not contrary to public policy or inconsistent with any existing industrial instruments.

The court reviewed the provisions of the proposed agreement and considered submissions from both parties. It examined the fairness of the agreement, its compliance with legislative requirements, and the process by which it was negotiated. The court found that the agreement was comprehensive and fair, and that it provided adequate protections for the employees. The applicant demonstrated that the agreement was negotiated in good faith and that it met all the statutory requirements for registration. The court was satisfied that the agreement did not contravene any public policy considerations and that it was consistent with the broader industrial framework.

In light of the findings, the court approved the DSL Rail Services & RTBU Agreement 2023, thereby allowing it to take effect as a legally binding enterprise agreement. This decision provides certainty for both the employer and the employees, ensuring that the terms of employment are governed by a registered agreement that has been vetted for compliance with the Fair Work Act.

DSL Rail Services Pty Ltd T/A DSL Rail Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established