Katoomba Scenic Railway Pty Ltd

[2013] FWCA 2286

[2013] FWCA 2286

FAIR WORK COMMISSION

DECISION

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

Katoomba Scenic Railway Pty Ltd
(AG2012/13162)

KATOOMBA SCENIC RAILWAY ENTERPRISE AGREEMENT 2012

Tourism industry
COMMISSIONER CAMBRIDGE	SYDNEY, 15 APRIL 2013

Application for approval of the Katoomba Scenic Railway Enterprise Agreement 2012

[1] An application has been made for approval of an enterprise agreement known as the Katoomba Scenic Railway Enterprise Agreement 2012(the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The application has been made by Katoomba Scenic Railway Pty Ltd (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 21 December 2012. The application included a Statutory Declaration of David Hammon made on behalf of the Employer and dated 19 December 2012 (the Declaration). The Declaration stated that the Agreement was made on 17 December 2010. This date has subsequently been corrected to be 17 December 2012. Therefore the application was made within the 14 day lodgement time limit established by subsection 185 (3) (a) of the Act.

[3] The application for approval was initially listed for Hearing on 24 January 2013 at which time there were noappearances for any party. The matter was subsequently re-listed for Hearing on 13 February 2013. On 13 February, Mr David Hammon appeared for the Employer and Messrs Richard Murray and Steven McAndrew appeared as employees to be covered by the Agreement. During the proceeding held on 13 February, the Fair Work Commission (the Commission) identified various issues relating to the contents of certain terms contained in the Agreement which required clarification.

[4] Mr Hammon provided some important clarifications during the Hearing. The Employer was invited to consider some residual issues raised by the Commission and to respond in writing. The Commission has received correspondence dated 12 April 2013, from the Employer which included further material in support of the application together with Undertakings made by and duly signed by the Employer, and proposed to the Commission pursuant to s.190 of the Act (the Undertakings).

[5] Consequently I have further considered the application for approval having regard for the clarifications provided during the Hearing, the further material in support of the application, and the Undertakings.

[6] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have further examined the contents of the Declaration in the context of the clarifications provided during the Hearing and the further material in support of the application. On the basis of this material I am satisfied that the procedural requirements of Part 2-4 of the Act have been met in this instance.

[7] I note that the Agreement contains a flexibility term at clause 6.9 and a consultation term at clause 10.1.

[8] I am prepared to accept the Undertakings. As provided by s.191 of the Act, the Undertakings are taken to be terms of the Agreement. I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval have been met.

[9] The Agreement as varied by the Undertakings is approved. In accordance with subsection 54 (1) of the Act, the Agreement will operate from 22 April 2013. In accordance with clause 1.3 of the Agreement the nominal expiry date of the Agreement is 2 December 2014.

COMMISSIONER

Undertakings:

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