DT Infrastructure Pty Ltd

[2025] FWCA 2657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

DT Infrastructure Pty Ltd

(AG2025/2292)

DTI WA RAIL ENTERPRISE AGREEMENT 2024

Building, metal and civil construction industries
COMMISSIONER ROGERS	ADELAIDE, 8 AUGUST 2025

Application for approval of the DTI WA Rail Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the DTI WA Rail Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by DT Infrastructure Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

The copy of the Agreement filed with the application for approval did not contain a signature page in the terms required by s.185 of the Act and Regulation 2.06A of the Fair Work Regulations 2009 (the Regulations). A copy of the Agreement with an amended signature page was later filed that met the requirements of the Act and Regulations. I consider it appropriate in the circumstances to allow the amendment of the application pursuant to s.586(a) of the Act.

I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met.

I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (the NES):

·   Casual Conversion – Agreement clause 10.4 states that the regular systemic period required for casual conversion is at least 12 months. This is inconsistent with s. 66 of the Act where it states that the regular systemic period is for at least 6 months.
·   Notice of termination – Agreement clause 19.2 states “If an Employee fails to give the required notice or fails to work out the required notice period, the Employer may deduct from monies owing to the Employee upon termination, an amount equivalent to the wage the Employee would have earned for working the balance of the required notice period”. As the source from which monies may be deducted has not been specified, this clause appears to permit the employer to deduct monies owing to the employee under the NES.
·   Redundancy – Agreement clause 19.5 states “Where an Employee is offered suitable alternative employment as part of a transmission/transfer of business or redeployment process, and does not accept that offer of employment, the Employee will not be entitled to redundancy provisions”. This clause does not state that the employer must apply to the Commission for a variation and therefore appears inconsistent with s.120 of the Act.
·   Compassionate leave – The entitlement to compassionate leave provided by clause 18.3 of the Agreement does not appear to provide leave after the stillbirth of a child of the employee or a member of the employee’s immediate family or household as per s.105(1)(b) of the Act or after the employee or the employee’s spouse or de facto partner has a miscarriage as per s.105(1)(c) of the Act.

Noting clause 4(c) of the Agreement, I am satisfied that the more beneficial entitlements of the NES in the Act will prevail where there is an inconsistency between the Agreement and the NES.

The Australian Rail, Tram and Bus Industry Union (ARTBIU) lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the ARTBIU.

The Agreement is approved and will operate in accordance with s.54 of the Act from 15 August 2025. The nominal expiry date of the Agreement is 15 August 2028.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved DT Infrastructure Pty Ltd and the Fair Work Commission. The company sought approval for a new enterprise agreement, the DTI WA Rail Enterprise Agreement 2024, which was intended to govern the terms and conditions of employment for employees within its Western Australian rail operations. The Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009 and whether it was in the best interests of the employees. The primary legal issues before the Commission included whether the agreement had been made in accordance with the prescribed processes and whether it contained terms that were not contrary to public policy or contrary to the safety and welfare of employees. Additionally, the Commission had to assess if the agreement provided for fair and reasonable terms and conditions for the employees.

The Commission examined the process by which the agreement was made, including whether there was genuine bargaining between the parties, and if the agreement had been properly certified by an independent certifier. The Fair Work Act stipulates that an enterprise agreement must be certified by an independent certifier who is satisfied that the agreement was made in accordance with the Act. Furthermore, the Commission considered whether the terms of the agreement were fair and reasonable, taking into account the economic circumstances, the nature of the industry, and the public interest. The Commission also evaluated whether any provisions in the agreement were inconsistent with any provisions of the National Employment Standards or other relevant laws.

After careful consideration, the Fair Work Commission found that the agreement was made in accordance with the prescribed processes and that it did not contain terms that were contrary to public policy or detrimental to the safety and welfare of employees. The Commission concluded that the agreement provided for fair and reasonable terms and conditions for the employees, taking into account the economic circumstances and the nature of the industry. The Commission certified the DTI WA Rail Enterprise Agreement 2024, and it was approved as a lawful and effective enterprise agreement. This decision ensures that the agreement will govern the employment terms for the relevant employees, providing a stable and predictable workplace environment.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established