Keolis Downer Adelaide Pty Limited T/A Keolis Downer Adelaide

[2020] FWCA 6531

[2020] FWCA 6531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Keolis Downer Adelaide Pty Limited T/A Keolis Downer Adelaide
(AG2020/3604)

KEOLIS DOWNER ADELAIDE INFRASTRUCTURE GREENFIELDS AGREEMENT 2020

Rail industry
COMMISSIONER PLATT	ADELAIDE, 4 DECEMBER 2020

Application for approval of the Keolis Downer Adelaide Infrastructure Greenfields Agreement 2020.

[1] An application has been made for approval of an enterprise agreement known as the Keolis Downer Adelaide Infrastructure Greenfields Agreement 2020 (the Agreement) pursuant to s.182(4) of the Fair Work Act 2009 (the Act) by Keolis Downer Adelaide Pty Limited T/A Keolis Downer Adelaide. The agreement is a single enterprise agreement that is a greenfields agreement.

[2] The matter was allocated to my Chambers on 30 November 2020.

[3] On 3 December 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking.

[4] The agreement is a greenfields agreement that meets the requirements of s.172(2)(b) of the Act.

[5] In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union are entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to the work that is to be performed under it.

[6] The Applicant has submitted an undertaking in the required form dated 3 December 2020. The undertaking deals with the following topics:

•  The shiftworker definition in clause 33.5.1 of the Agreement provides an additional weeks’ annual leave for the purposes of the National Employment Standards (NES).

•  In relation to clause 13.2.2, the Applicant may withhold wages in circumstances where an employee fails to provide the required period of notice.

•  Despite 13.3.2 and 13.3.4, employees who abandon their employment will be entitled to the relevant notice of termination in accordance with clause 13.

•  The Applicant will not enforce clause 38.2.2(b), which restricts employees right to take personal/carer’s leave where another person has taken leave to care for the same person.

•  Notice for taking personal/carer’s should be provided as soon as reasonably practicable and may be at a time after the commencement of the employee’s shift.

[7] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives supported the undertaking.

[8] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[9] Pursuant to s.53(2)(b) of the Act I note that the Agreement was made with the Australian Rail, Tram and Bus Industry Union and the Australian Workers’ Union and that the Agreement covers these organisations.

[10] I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met.

[11] I am satisfied that it is in the public interest to approve the Agreement.

[12] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 31 March 2023.

COMMISSIONER

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