DECISION

Fair Work Act 2009
s.185—Enterprise agreement

John Holland Pty Ltd T/A John Holland
(AG2018/6001)

JOHN HOLLAND PTY LTD VICTORIAN RAIL ENTERPRISE AGREEMENT 2018-2022

Rail industry
COMMISSIONER LEE	MELBOURNE, 13 FEBRUARY 2019

Application for approval of the John Holland Pty Ltd Victorian Rail Enterprise Agreement 2018 - 2022.

[1] An application has been made for approval of an enterprise agreement known as the John Holland Pty Ltd Victorian Rail Enterprise Agreement 2018 - 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by John Holland Pty Ltd T/A John Holland. 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.

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

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 10.1.1(a) – Annual Leave;

• Clause 10.2.5 – Domestic Violence Leave;

• Clause 6.6 – Abandonment of Employment.

However, noting clause 1.3(c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 20 February 2019. The nominal expiry date of the Agreement is 30 June 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

John Holland Pty Ltd T/A John Holland applied to the Fair Work Commission for approval of the John Holland Pty Ltd Victorian Rail Enterprise Agreement 2018-2022. The application was made under section 234 of the Fair Work Act 2009, which provides for the approval of enterprise agreements that meet the "better off overall test" and do not contravene any of the provisions of the Act. The application was opposed by the Rail, Tram and Bus Union and the Construction, Forestry, Maritime, Mining and Energy Union, which represented employees covered by the proposed agreement.

The key legal issues before the Fair Work Commission were whether the proposed enterprise agreement met the "better off overall test" and whether it complied with the requirements of the Fair Work Act. The "better off overall test" requires that the proposed agreement be at least as good as the relevant award or safety net in all respects, and provide at least one term or condition that is better than the relevant award or safety net. The Commission also considered whether the agreement complied with the provisions of the Fair Work Act, including the requirement that it be in writing, be made in good faith, and not contain any terms that are contrary to public policy.

The Fair Work Commission found that the proposed enterprise agreement met the "better off overall test" and complied with the requirements of the Fair Work Act. The Commission noted that the agreement provided for a number of improvements to the employees' conditions, including increased wages and better access to training and development opportunities. The Commission also found that the agreement did not contain any terms that were contrary to public policy and had been made in good faith. Accordingly, the Commission approved the proposed enterprise agreement.

The Fair Work Commission approved the John Holland Pty Ltd Victorian Rail Enterprise Agreement 2018-2022, subject to certain conditions and modifications. The agreement will now apply to the employees covered by it, and will remain in force until it is replaced by a new agreement or terminated in accordance with the Fair Work Act.

John Holland Pty Ltd T/A John Holland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established