Infraworks Services Pty Ltd

[2022] FWCA 351

[2022] FWCA 351

FAIR WORK COMMISSION

decision

Fair Work Act 2009

s.185—Enterprise agreement

Infraworks Services Pty Ltd

(AG2021/9206)

INFRAWORKS SERVICES PTY LTD RAIL SAFE WORKING PERSONNEL NEW SOUTH WALES ENTERPRISE AGREEMENT 2021

Rail industry
Commissioner Matheson	SYDNEY, 4 FEBRUARY 2022

Application for approval of the Infraworks Services Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2021.

1. An application has been made for approval of an enterprise agreement known as the Infraworks Services Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2021 (Agreement). The application was made by Infraworks Services Pty Ltd (Applicant) pursuant to s.185 of the Fair Work Act 2009 (Cth) (Act). The Agreement is a single enterprise agreement.

1. Since the application was made, the Applicant advised the Commission that an error had occurred in relation to the copy of the Agreement filed with the application and sought to correct this by providing a copy of the complete Agreement including rates of pay. The Applicant advised that the copy of the complete Agreement was the version that employees voted to approve and, on 20 January 2022, the Australian Rail, Tram and Bus Industry Union, a bargaining representative for the Agreement, also confirmed this via email to the Commission. The Commission requested that the Applicant file a signed copy of the Agreement that was voted on by employees and this was subsequently provided by the Applicant. Pursuant to s.586(b) of the Act, I waive the irregularity in the form or manner in which the application was made.

1. The Notice of Employee Representational Rights (NERR) stated that the proposed coverage of the Agreement was “employees that perform work for the company”. Clause 2 of the Agreement provides that the Agreement shall be binding upon employees of the Applicant who work as worksite protection officers, as described in clause 9 of the Agreement, in New South Wales. The Commission sought submissions regarding this. The Applicant submitted that the employees who received the NERR and Agreement and who were eligible to vote on the Agreement were the same and that no employees covered by the Agreement have been disadvantaged by the error.

1. Voting for the Agreement commenced on 16 December 2021 and employees were notified of the time and place of vote and voting method to be used on 13 December 2021 (after the start of the access period. The Commission sought submissions regarding this.

1. On the basis of the materials before the Commission, and in the circumstances of this application, I find that the Agreement would have been genuinely agreed to within the meaning of s.188(1) of the Act but for these minor procedural or technical errors and that employees covered by the Agreement were not likely to have been disadvantaged by the errors.

1. Since the application was lodged, the Commission also sought further information regarding whether pre-approval requirements had been met. The Applicant provided further information to the Commission on 1 February 2022.

1. On the basis of the materials before the Commission, I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to the application for approval of the Agreement have been met.

1. 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) of the Act, I note that the Agreement covers the organisation.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2022. The nominal expiry date of the Agreement is 15 January 2025.

COMMISSIONER

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