EDI Rail Alstom Transport (Maintenance) Pty Ltd

[2025] FWCA 1926

[2025] FWCA 1926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 185—Enterprise agreement

EDI Rail Alstom Transport (Maintenance) Pty Ltd

(AG2025/1527)

DOWNER ALSTOM JOINT VENTURE EA 2025

Manufacturing and associated industries
COMMISSIONER LIM	PERTH, 10 JUNE 2025

Application for approval of the Downer Alstom Joint Venture EA 2025.

1. EDI Rail Alstom Transport (Maintenance) Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Downer Alstom Joint Venture EA 2025 (the Agreement). The application was made under s 185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

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

(a)Clause 28.2 states that annual leave shall not accrue during periods of unauthorised or unpaid leave. This may be more restrictive than the exceptions provided in s 22(2)(b) of the Act which count as service such as: a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or a period of stand down under Part 3-5 under an enterprise agreement that applies to the employee or under the employee’s contract of employment; or a period of leave or absence of a kind prescribed by the regulations.

(b)Clause 29.6 provides for personal/carers leave absences and states that the employee is required to advise their supervisor of the reason and expected duration of the absence as soon as practicable and prior to the employee’s expected commencement time. This may be inconsistent with s 107 of the Act which provides for notice to be given as soon as reasonably practicable (which may be a time after the leave has started).

(c)Clause 29.11 states unpaid personal or carer’s leave may be granted at the company’s discretion where the employee does not have sufficient accrued leave entitlements, or the person is a casual. This may be more restrictive than s 102 of the Act where an employee is entitled to 2 days of unpaid carer’s leave per permissible occasion.

(d)Clause 38.9(c) appears to provide that termination of employment by abandonment operates ‘from the date of the last attendance at work or the date that the Employee’s absence was last granted or notification was given, whichever is later’. This may not be consistent with s 117 of the Act, which provides that an employer may not terminate an employee’s employment without notice of the date of termination, which may not be a date before the notice is given.

1. However, I am satisfied that under clause 3.3 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australian Rail, Tram and Bus Industry Union (together, the organisations), being bargaining representatives for the Agreement, have given notice under s 183 of the Act that they want the Agreement to cover them. In accordance with s 201(2), and based on the declaration provided by the organisation, I note that the organisations are covered by the Agreement.

1. The Agreement was approved on 10 June 2025 and, in accordance with s 54, will operate from 17 June 2025. The nominal expiry date of the Agreement is 31 March 2028.

COMMISSIONER

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