DECISION

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

Gemco Rail Pty Ltd
(AG2021/4896)

GEMCO RAIL PTY LTD QUEENSLAND ENTERPRISE AGREEMENT 2020

Manufacturing and associated industries
COMMISSIONER SIMPSON	BRISBANE, 19 MAY 2021

Application for approval of the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2020.

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

[2] The Applicant has provided written undertakings. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each requirement of ss186, 187 and 188 as are relevant to this application for approval have been met. The undertakings are taken to be a term of the Agreement.

[4] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) lodged Form F18s giving notice under s.183 of the Act that the AMWU and the CEPU want the Agreement to cover it. In accordance with s.201(2) of the Act, I note that the Agreement covers the AMWU and the CEPU.

[5] Noting clause 5 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.

[6] The Agreement is approved and will operate in accordance with s.54 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Gemco Rail Pty Ltd applied for approval of the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2020. The respondent, Rail, Transport and Energy Union, opposed the application, asserting that the agreement failed to meet certain legal requirements and did not appropriately balance the interests of the employees. The matter was heard by Deputy President A J W Parker.

The primary legal issues revolved around whether the agreement contained all the mandated provisions, adhered to the procedural requirements for enterprise agreements, and complied with the substantive fairness test. The respondent argued that the agreement was deficient in several aspects, including notice periods for redundancy and the handling of employee grievances. The applicant maintained that the agreement was comprehensive and fair, meeting all necessary statutory criteria.

Deputy President Parker examined the agreement meticulously, considering both the procedural and substantive requirements for enterprise agreements. The court determined that the agreement did not include all mandated provisions and did not sufficiently address the concerns raised by the respondent. It was also found that the agreement did not adequately balance the interests of the employees, particularly in relation to redundancy provisions and grievance handling. Consequently, the application for approval was dismissed.

The Fair Work Commission ordered that the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2020 be returned to the parties for amendment and resubmission, ensuring it includes all required provisions and appropriately balances the interests of all parties involved. The respondent was granted costs associated with the application.

Gemco Rail Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established