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

Annexure A

CaseChat Overview and Summary

The applicant, Genesee & Wyoming Australia Pty Ltd, sought approval of the Rollingstock Maintenance Enterprise Agreement 2019 from the Fair Work Commission. The application was contested by the Rail, Tram and Bus Union, which argued the agreement failed to meet the requirements of the Fair Work Act 2009. The matter was heard by Deputy President Ryan.

The primary issue before the court was whether the agreement satisfied the statutory criteria for approval under section 233 of the Fair Work Act. Specifically, the court had to determine if the agreement was a "registerable" agreement, meaning it was in writing, provided for the terms and conditions of employment, and was made by an employer and a registered organisation representing employees. Additionally, the court examined whether the agreement was free from prohibited content, met the requirements for majority employee support, and did not include any provisions that were contrary to public policy.

In considering these issues, Deputy President Ryan examined the terms of the agreement and the process by which it was made. The court found that the agreement was in writing and provided for the terms and conditions of employment of the relevant employees. The court also found that the agreement was made by an employer and a registered organisation representing employees. Furthermore, the court found that the agreement was free from prohibited content and met the requirements for majority employee support. However, the court found that the agreement included provisions that were contrary to public policy, specifically provisions that allowed for the imposition of financial penalties on employees for breaches of the agreement. These provisions were found to be contrary to public policy because they effectively allowed for the imposition of financial penalties on employees without a fair and transparent process. As a result, the court refused to approve the agreement.

The court's decision was based on the finding that the agreement included provisions that were contrary to public policy. The court refused to approve the agreement and ordered that the application be dismissed. The court did not make any other orders.

Genesee & Wyoming Australia Pty Ltd

DECISION

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