Gemco Rail Pty Ltd

[2021] FWCA 6681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Gemco Rail Pty Ltd
(AG2021/8127)

GEMCO RAIL PTY LTD NEW SOUTH WALES ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
DEPUTY PRESIDENT DEAN	CANBERRA, 15 NOVEMBER 2021

Application for approval of the Gemco Rail Pty Ltd New South Wales Enterprise Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Gemco Rail Pty Ltd New South Wales Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Gemco Rail Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided a written undertaking. A copy of the undertaking is attached in Annexure A. I am satisfied that the undertaking will not cause financial detriment to any employee covered by the Agreement and that the undertaking will not result in substantial changes to the Agreement. The undertaking is taken to be a term of the agreement.

[3] Subject to the undertaking referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 November 2021. The nominal expiry date of the Agreement is 30 November 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the Fair Work Commission, Gemco Rail Pty Ltd applied for approval of the New South Wales Enterprise Agreement 2020. The applicants sought to have the agreement recognised as a new modern award, with provisions differing from the relevant industry award. The case involved assessing whether the agreement complied with the Fair Work Act 2009 and met the requirements for approval under the Fair Work Regulations 2009.

The central legal issues revolved around the compliance of the agreement with the Fair Work Act, including whether it contained mandatory terms, was free from prohibited content, and satisfied the procedural requirements for approval. Additionally, the court examined whether the agreement provided for a fair and efficient workplace, and whether it complied with the minimum terms set out in the relevant modern award.

The Fair Work Commission determined that the agreement was largely compliant with the Fair Work Act. It found that the provisions did not contain any mandatory terms that were not covered by the relevant award. The commission also noted that the agreement did not include any content that was prohibited by law and was procedurally sound. The agreement was found to provide for a fair and efficient workplace, with the necessary provisions to ensure this. Consequently, the commission approved the application, allowing the agreement to be recognised as a new modern award.

The Fair Work Commission approved the Gemco Rail Pty Ltd New South Wales Enterprise Agreement 2020 as a new modern award. This decision was made on the basis that the agreement complied with the Fair Work Act, contained no mandatory terms, was free from prohibited content, and met the procedural requirements for approval. The agreement was also found to provide for a fair and efficient workplace, and satisfied the minimum terms set out in the relevant modern award.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established