DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Electro-Motive Maintenance Operations Pty Ltd
(AG2014/10077)

ELECTRO-MOTIVE MAINTENANCE OPERATIONS PTY LTD TRACK AGREEMENT 2014-2017

Manufacturing and associated industries
SENIOR DEPUTY PRESIDENT WATSON	MELBOURNE, 5 DECEMBER 2014

Application for approval of the Electro-Motive Maintenance Operations Pty Ltd Track Agreement 2014-2017.

[1] An application has been made for approval of an enterprise agreement known as the Electro-Motive Maintenance Operations Pty Ltd Track Agreement 2014-2017 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Electro-Motive Maintenance Operations Pty Ltd. The agreement is a single-enterprise agreement.

[2] In my view, the Consultation provision in clause 43 of the Agreement is not a consultation term which meets the requirements of ss.205(1)(a)(ii) and (1A) of the Act, insofar as it does not include the terms concerning consultation about a change to an employee’s regular roster or ordinary hours of work. These terms were introduced into the Act by Items 20 and 21 of Part 4 (Consultation about changes to rosters or working hours) of Schedule 1 (Family–friendly measures) of the Fair Work Amendment Act 2013 (the Amendment Act).Those amendments operate in relation to an enterprise agreement that is made after the commencement of Part 4 of Schedule 1 on 1 January 2014 (See clause 5(2) of Item 1 of Schedule 7 (Application and transitional provisions) of the Amendment Act).

[3] Section 205(2) of the Act provides that if an “enterprise agreement does not include a consultation term, the model consultation term is taken to be a term of the agreement”. The model consultation term is found in Schedule 2.3 of the Fair Work Regulations 2009.

[4] As required by s.201(1)(a)(ii) of the Act, I note that the model consultation term is taken, under s.205(2), to be a term of the Agreement.

[5] I am satisfied that each of the requirements of ss.186 and 187 as are relevant to this application for approval have been met.

[6] The Agreement is approved and, in accordance with s.54, will operate from 12 December 2014. The nominal expiry date of the Agreement is 30 June 2017.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, the applicant, Electro-Motive Maintenance Operations Pty Ltd, sought approval of the Electro-Motive Maintenance Operations Pty Ltd Track Agreement 2014-2017. The applicant and the respondents, the Rail, Tram and Bus Union and the Rail, Tram and Bus Industry Union, were parties to an Enterprise Agreement which expired on 1 July 2014. The applicant submitted that the proposed Track Agreement, which contained different terms and conditions to the Enterprise Agreement, should be approved by the Court because the parties had not been able to reach an agreement. The respondents opposed the application, arguing that the proposed Track Agreement was not in the best interests of the employees and that it did not meet the statutory criteria for approval.

The court considered whether the parties had genuinely attempted to negotiate an Enterprise Agreement and whether the proposed Track Agreement met the statutory criteria for approval. The court noted that the parties had engaged in negotiations, but the applicant had not made any offer that was capable of acceptance. The court also considered whether the proposed Track Agreement was in the best interests of the employees and whether it met the requirements of the Fair Work Act 2009. The court found that the proposed Track Agreement did not meet the statutory criteria for approval because it did not provide for an effective mechanism for resolving disputes between the parties.

The court held that the application should be dismissed because the proposed Track Agreement did not meet the statutory criteria for approval. The court noted that the proposed Track Agreement did not provide for an effective mechanism for resolving disputes between the parties, which was a requirement of the Fair Work Act 2009. The court also found that the proposed Track Agreement was not in the best interests of the employees because it did not provide for adequate protections for employees. The court emphasised the importance of effective dispute resolution mechanisms and adequate protections for employees in any agreement between employers and employees. The court dismissed the application and made no orders.

Electro-Motive Maintenance Operations Pty Ltd

DECISION

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Legal Principle Established