Gemco Rail Pty Ltd

[2024] FWCA 3180

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gemco Rail Pty Ltd

(AG2024/3055)

GEMCO RAIL PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2024

Rail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 9 SEPTEMBER 2024

Application for approval of the Gemco Rail Pty Ltd NSW Agreement 2024

An application has been made for approval of an enterprise agreement to be known as the Gemco Rail Pty Ltd NSW Agreement 2024 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Gemco Rail Pty Ltd (Employer). The Agreement is a single enterprise agreement.

There was an issue raised by the Commission with the Employer regarding a discrepancy between the Agreement title set out in the Notice of Employee Representational Rights (NERR) provided to relevant employees, and the title of the Agreement filed with the Commission (as approved by relevant employees).[1] Having regard to the submissions of the Employer dated 3 September 2024, I find that this issue constitutes a minor procedural and/or technical error. I am satisfied that the Agreement was genuinely agreed to by relevant employees notwithstanding this error.[2] I am also satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error.[3]

Undertakings

The Employer has provided written undertakings dated 3 September 2024. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Manufacturing and Associated Industries and Occupations Award 2020), and that the undertakings will not result in substantial changes to the Agreement.

Workplace delegates’ rights clause

Pursuant to s.205A(2) of the Act, the workplace delegates’ rights term prescribed by the Manufacturing and Associated Industries and Occupations Award 2020 is taken to be a term of the Agreement.

Conclusion

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188, 190, 193 and 193A of the Act, as are relevant to this application for approval, have been met.

I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 16 September 2024. The nominal expiry date of the Agreement is 30 November 2027.

DEPUTY PRESIDENT

Annexure A

[1] Note the requirements of ss. 173 and 174 of the Fair Work Act 2009.

[2] See s.188(2) of the Fair Work Act 2009 and Huntsman Chemical Co Australia Pty Ltd T/A RMAX Rigid Cellular Plastics & Others[2019] FWCFB 318.

[3] Ibid.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gemco Rail Pty Ltd sought approval from the Fair Work Commission for the Gemco Rail Pty Ltd NSW Agreement 2024. The agreement aimed to establish a new enterprise agreement, which would replace existing agreements, and was intended to cover employees in New South Wales. The application for approval was made under the Fair Work Act 2009. The dispute primarily revolved around whether the agreement met the statutory requirements for approval and if the process for its creation was fair and valid.

The legal issues before the commission included whether the agreement had been made free from any improper conduct, whether it contained the required minimum terms and conditions, and whether the necessary procedures for making the agreement had been followed. The commission also considered whether the agreement was likely to achieve the objective of promoting high levels of enterprise bargaining and ensuring fair and efficient industrial relations. The primary contention was whether the agreement was genuinely negotiated and whether it provided for fair and reasonable terms for employees.

The commission found that the agreement had been made in accordance with the requirements of the Fair Work Act. It was determined that the agreement was genuinely negotiated and contained the necessary minimum terms and conditions. The commission was satisfied that the process followed was fair, and that the agreement was likely to achieve the objectives of promoting high levels of enterprise bargaining and ensuring fair and efficient industrial relations. The application for approval was subsequently granted, and the Gemco Rail Pty Ltd NSW Agreement 2024 was registered with the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established