John Holland Pty Ltd

[2016] FWCA 294

[2016] FWCA 294

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a greenfields agreement

John Holland Pty Ltd
(AG2015/7899)

JOHN HOLLAND PTY LTD INTERMODAL RAIL DRIVERS AGREEMENT 2015

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 JANUARY 2016

Application for approval of the John Holland Pty Ltd Intermodal Rail Drivers Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by John Holland Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a greenfields agreement to be known as the John Holland Pty Ltd Intermodal Rail Drivers Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with Australian Rail, Tram and Bus Industry Union (the ‘Union’). It is intended to cover employees of the applicant’s intermodal rail operations in New South Wales, pursuant to contracts between the applicant and third parties. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The Agreement was made on 21 December 2015 (s 182(3)). I am satisfied that the Agreement covers a genuine new enterprise and the employer does not currently employ any persons that would be covered by the Agreement. In addition, I am satisfied that the Union is entitled to represent the industrial interests of a majority of the prospective employees who would be covered by the Agreement, in relation to work that would be performed under the Agreement. The application for approval of the Agreement was lodged on 23 December 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F20) Mr T Smith, Industrial Relations Manager NSW/ACT/QLD/NT identified the Rail Industry Award 2010 [MA000015] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Smithsaid that the Agreement does not provide for a number of allowances and provides for a loading of 70% for all overtime worked. However, the Agreement provides for a range of terms and conditions that are more beneficial, including higher rates of pay, the averaging of ordinary hours of work for the calculation of overtime over four weeks, an increased meal allowance and three days’ trauma leave. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 7 and 8 respectively, and a disputes resolution procedure at clause 37 provides for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 14 January 2016, Mr T Smith appeared for the applicant and Mr R Hayden for the Union. Mr Smith outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. Mr Smith explained that salaries under the Agreement are to be increased by 4.5% on 1 December in each year of the Agreement’s nominal term. Mr Hayden supported the submissions of the Mr Smith. The Union had filed a Declaration in relation to the application (Form F21) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 182, 186 and 187, in so far as relevant to this application, have been met. Accordingly, I approve a greenfields agreement known as the John Holland Pty Ltd Intermodal Rail Drivers Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 21 January 2016 and have a nominal expiry date of 20 January 2020.

DEPUTY PRESIDENT

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