Genesee & Wyoming Australia Pty Ltd

[2020] FWCA 607

[2020] FWCA 607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Genesee & Wyoming Australia Pty Ltd
(AG2019/4869)

GENESEE & WYOMING AUSTRALIA PTY LTD (SA/NT) ROLLINGSTOCK MAINTENANCE ENTERPRISE AGREEMENT 2019

Rail industry
DEPUTY PRESIDENT MASSON	MELBOURNE, 5 FEBRUARY 2020

Application for approval of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Genesee & Wyoming Australia Pty Ltd (SA/NT) Rollingstock Maintenance Enterprise Agreement 2019 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Genesee & Wyoming Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] 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.

[3] 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.

[4] I note that Clauses 22.2, 29.6 and 35.1.2 are inconsistent with the National Employment Standards. Given the National Employment Standards precedence clause at clause 7 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail.

[5] I note that clauses 13.2.2 and 13.3 may not be permitted deductions within the meaning of s.324 of the Act and pursuant to s.326 are likely to have no effect to the extent that they are not permitted deductions. However, notwithstanding my view on that, it is not a matter to which I am to have regard in terms of whether or not the Agreement should be approved and it does not represent a barrier to the approval of the Agreement.

[6] The Australian Rail, Tram and Bus Industry Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers the organisations.

[7] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 February 2020. The nominal expiry date of the Agreement is 4 February 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE506982  PR716446>

Annexure A