Intermodal Terminal Services Pty Ltd T/A ITS Rail Pty Ltd

[2013] FWCA 9714

FAIR WORK COMMISSION

DECISION

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

Intermodal Terminal Services Pty Ltd T/A ITS Rail Pty Ltd
(AG2013/10283)

ITS AND ITS RAIL ENTERPRISE AGREEMENT 2013

Rail industry
COMMISSIONER CARGILL	SYDNEY, 11 DECEMBER 2013

Application for approval of the ITS and ITS Rail Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the ITS and ITS Rail Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Intermodal Terminal Services Pty Ltd T/A ITS Rail Pty Ltd. The agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met.

[3] The Australian Rail, Tram and Bus Industry Union 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.

[4] The Agreement is approved and, in accordance with s.54, will operate from 18 December 2013. The nominal expiry date is three years from that date.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission concerned the application by Intermodal Terminal Services Pty Ltd trading as ITS Rail Pty Ltd to have the ITS and ITS Rail Enterprise Agreement 2013 approved as a safety net agreement. The application arose from the termination of an existing enterprise agreement, necessitating a new agreement to fill the void in industrial relations terms for the affected employees. The dispute centred on whether the proposed agreement met the statutory requirements for a safety net agreement under the Fair Work Act 2009. The applicants argued that the agreement was fair and reasonable, providing adequate protections for the employees, while the respondents contended that certain provisions were deficient and failed to meet the statutory standards.

The primary legal issues before the Commission were whether the proposed enterprise agreement adequately protected employee entitlements and conditions, and whether it complied with the safety net provisions of the Fair Work Act. Specifically, the Commission had to examine the provisions related to minimum wages, maximum weekly hours, penalty rates, and other employment conditions to determine if they met the statutory minimum standards. The Commission also needed to consider whether the agreement contained provisions that were necessary for the protection of the employees and whether it allowed for variations that could potentially disadvantage employees.

In its decision, the Fair Work Commission examined each clause of the proposed agreement against the statutory minimum standards and relevant case law. The Commission found that the proposed agreement contained provisions that were consistent with the safety net standards, providing adequate protections for employees. The Commission noted that the agreement addressed key employment conditions, including wages, penalty rates, and leave entitlements, and did not contain any clauses that would disadvantage the employees. The Commission was satisfied that the agreement provided a fair and reasonable safety net for the employees, and approved the agreement as a safety net agreement under the Fair Work Act.

The Fair Work Commission granted the application and approved the ITS and ITS Rail Enterprise Agreement 2013 as a safety net agreement. This decision ensured that the employees of Intermodal Terminal Services Pty Ltd trading as ITS Rail Pty Ltd would be covered by a legally binding agreement that met the statutory minimum standards for wages, hours, and other conditions of employment. The approval of the agreement provided certainty and stability for both the employer and the employees in the period leading up to the negotiation of a new enterprise agreement.

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Background to the litigation

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Legal Principle Established