Genesee & Wyoming Australia Pty Ltd

[2020] FWCA 1810

[2020] FWCA 1810

FAIR WORK COMMISSION

DECISION

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

Genesee & Wyoming Australia Pty Ltd
(AG2020/390)

GENESEE & WYOMING AUSTRALIA PTY LTD (SA/NT) TERMINAL OPERATIONS ENTERPRISE AGREEMENT 2020

Rail industry
COMMISSIONER BOOTH	BRISBANE, 3 APRIL 2020

Application for approval of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Terminal Operations Enterprise Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by Genesee & Wyoming Australia Pty Ltd (the Applicant) for approval of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Terminal Operations Enterprise Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Correspondence was sent to the Applicant and bargaining representatives on 2 March 2020, raising a number of concerns in relation to the Agreement.

[3] The Applicant provided submissions and undertakings on 5 March 2020, addressing the concerns raised. Further to correspondence received from the Australian Rail, Tram and Bus Industry Union (the RTBU) in relation to such, the Applicant filed amended undertakings on 12 March 2020.

[4] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[5] I observe that the following clauses are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 11.3 – abandonment of employment;

•  Clause 19.2 – public holidays;

•  Clause 23.5 – annual leave; and

•  Clause 25 – personal/carer’s leave.

[6] However, noting the NES precedence clause provided with the undertakings at Attachment A, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] Subject to the matters raised at paragraphs [5]-[6] and the undertakings provided, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The RTBU filed a Form F18 in this matter, advising that it supports approval of the Agreement by the Commission, and providing 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 RTBU.

[9] The Agreement is approved and, in accordance with s.54 of the Act and clause 4.1 of the Agreement, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 2 April 2024.

COMMISSIONER

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<AE507686  PR718071>

Attachment A