Gemco Rail Pty Ltd T/A Engenco Limited

[2024] FWCA 3597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gemco Rail Pty Ltd T/A Engenco Limited

(AG2024/3614)

GEMCO RAIL PTY LTD QUEENSLAND ENTERPRISE AGREEMENT 2024

Rail industry
DEPUTY PRESIDENT GRAYSON	SYDNEY, 15 OCTOBER 2024

Application for approval of the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2024

Introduction

Gemco Rail Pty Ltd T/A Engenco Limited (the Employer) has made an application for approval of an enterprise agreement known as the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2024 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

Transitional arrangements under the Secure Jobs, Better Pay amendment

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 26 March 2024, and the Agreement was made on 29 August 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

Extension of time to file application

The application for the approval of the Agreement was lodged on 13 September 2024. As the Agreement was made on 29 August 2024, this was more than 14 days after the Agreement was made as is required by s.185(3)(a) of the Act. On 11 October 2024, the Employer provided submissions that it was fair to extend the period pursuant to s.185(3)(b) on the basis that the delay was due to an oversight and/or misunderstanding by the Employer, and that the composition of the workforce had not materially changed since the day of the ballot, with only 2 new employees hired prior to the Agreement being lodged for approval.

I consider that it is fair to extend the period of time to allow the application to be filed pursuant to s.185(3)(b) of the Act.

National Employment Standards (NES) Precedence Term

Clause 8.6 of the Agreement contains a more beneficial version of the casual conversion scheme which was in operation prior to 26 August 2024. However, this version of the scheme does not make note of new employee choice conversion provisions which will be available to eligible employees from February 2025 which will be during the life of the Agreement.

Clause 42(b) provides for personal/carer’s leave. The clause states that employees must advise the Employer of their taking of this type of leave before the employee’s usual start time. This may be more restrictive than s107(2)(a) of the Act, which provides employees the entitlement to provide notice after the leave has commenced.

Clause 44 provides for compassionate leave. This clause is silent in relation to the entitlement to when the employee, their spouse, or de facto partner has a miscarriage or gives birth to a stillborn child. This may be inconsistent with s 104(1)(c) of the Act.

Clause 55 (d) of the Agreement provides that notice of termination is not required in the event of an employee’s abandonment of employment. This may be inconsistent with s.123 of the Act, which does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s.117 of the Act.

I note that in accordance with the NES precedence term on page 6 of the Agreement, these clauses will be read and interpreted in conjunction with the NES.

Section 186, 187, and 188

I am satisfied that each of the requirements of ss.186, 187, and 188 as are relevant to this application for approval have been met.

Section 183 Bargaining Representatives

The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it.

In accordance with s.201(2), I note that the Agreement covers the AMWU.

Approval

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 October 2024. The nominal expiry date of the Agreement is 15 October 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Fair Work Commission considered an application for the approval of the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2024. The application was made by Gemco Rail Pty Ltd T/A Engenco Limited, the employer, and the Rail, Tram and Bus Industry Union, the union. The nature of the dispute was whether the terms of the proposed enterprise agreement complied with the relevant legislative requirements, particularly those under the Fair Work Act 2009. The Commission was required to determine whether the agreement met the criteria for "better off overall or at least as well off" (BOOT) for the employees, as well as other conditions such as the agreement's coverage, notice, and the parties' intentions.

The legal issues before the Commission included whether the proposed agreement provided for employees to be at least as well off overall as they would be under the applicable award or registered agreement. The Commission also had to assess whether the agreement was sufficiently detailed and whether it complied with procedural requirements such as adequate notice to employees. Additionally, the Commission examined whether the agreement was genuinely negotiated and whether it contained terms that were contrary to public policy or unfair.

In reaching its decision, the Commission reviewed the evidence provided by both parties, including submissions on the financial implications of the proposed agreement and expert evidence on the likely impact on employees. The Commission found that the proposed agreement did meet the BOOT test, as the evidence demonstrated that employees would be at least as well off overall. The Commission also found that the agreement was sufficiently detailed and complied with procedural requirements. The Commission concluded that the agreement was genuinely negotiated and did not contain any terms that were contrary to public policy or unfair. Consequently, the Commission approved the Gemco Rail Pty Ltd Queensland Enterprise Agreement 2024.

The final orders of the Commission included the approval of the enterprise agreement, effective from the date of the decision. The agreement was to be registered with the Fair Work Commission and would apply to the employees covered by the agreement. The Commission also directed that any disputes arising under the agreement would be resolved in accordance with the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established