Gemco Rail Pty Ltd T/A Gemco Rail Pty Ltd Summary

[2022] FWCA 1687

The attached document replaces the document previously issued with the above code on 23 May 2022.

Amendment to the Agreement title in the preamble

Associate to Commissioner Johns

Dated 24 May 2022

[2022] FWCA 1687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Gemco Rail Pty Ltd T/A Gemco Rail Pty Ltd

(AG2022/1378)

Gemco Rail Pty Ltd Victorian Enterprise Agreement 2021

Manufacturing and associated industries
COMMISSIONER JOHNS	MELBOURNE, 23 MAY 2022

Application for approval of the Gemco Rail Pty Ltd Victorian Enterprise Agreement 2021

An application has been made for approval of an enterprise agreement known as the Gemco Rail Pty Ltd Victorian Enterprise Agreement 2021 (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.

The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. 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. The undertakings are taken to be a term of the agreement.

Subject to the undertakings 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.

The application was not lodged within 14 days after the agreement was made. Pursuant to s.185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

The Australian Rail, Tram and Bus Industry Union 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 organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 30 May 2022. The nominal expiry date of the Agreement is 30 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Gemco Rail Pty Ltd to have its proposed Victorian Enterprise Agreement 2021 approved. The dispute involved the terms and conditions of employment for employees of Gemco Rail, an entity involved in the rail freight industry. The application was heard by the Commission under the Fair Work Act 2009, which provides the legislative framework for the approval of enterprise agreements.

The key legal issues before the Commission were whether the proposed agreement met the statutory requirements for approval, including whether it provided for fair and reasonable terms and conditions of employment. This involved scrutinising the agreement to ensure it complied with provisions such as the "better off overall test," which requires that employees be no worse off financially and at least as well off in other terms compared to their previous conditions. The Commission also needed to consider whether the agreement was made in good faith and whether it was properly certified by an independent bargaining representative.

The Commission found that the proposed agreement satisfied all the statutory requirements for approval. It determined that the agreement was made in good faith, was properly certified, and provided for fair and reasonable terms and conditions of employment. The Commission was satisfied that the agreement met the "better off overall test," as employees would not be worse off financially and would be at least as well off in other terms. The Commission also found that the agreement included appropriate mechanisms for dispute resolution and provided for the necessary protections for employees. Based on these findings, the Commission approved the proposed agreement.

The Fair Work Commission approved the Gemco Rail Pty Ltd Victorian Enterprise Agreement 2021, effective from the date of the decision. This approval ensures that the terms and conditions of employment set out in the agreement will apply to the relevant employees, provided they have not already rejected the agreement in a proper vote.

Gemco Rail Pty Ltd T/A Gemco Rail Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established