Metro Trains Sydney Pty Ltd (MTS)

[2020] FWCA 1560

[2020] FWCA 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Metro Trains Sydney Pty Ltd (MTS)
(AG2020/294)

METRO TRAINS SYDNEY ASSET ENGINEERING INFRASTRUCTURE ENTERPRISE AGREEMENT 2019

Rail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 26 MARCH 2020

Application for approval of the Metro Trains Sydney Asset Engineering Infrastructure Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement to be known as the Metro Trains Sydney Asset Engineering Infrastructure Enterprise Agreement 2019 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Metro Trains Sydney Pty Ltd (Applicant or Employer). The Agreement is a single enterprise agreement.

[2] I note that the Agreement was made on 17 January 2020, but was filed for approval with the Fair Work Commission on 10 February 2020. Observing that s.185(3)(a) of the Act imposes a 14-day time limit to bring an application of this kind (and that the time is measured by reference to the day an agreement is made), the Applicant has brought this application 10 days out of time.

[3] Despite the Applicant’s non-compliance in this regard, I find that it is fair to extend the period for making the application by 10 days. I do so in reliance of the power afforded to me by s.185(3)(b) of the Act, and having had regard to all of the circumstances (namely, that the delay is of a short duration, and has not caused prejudice to any employees seeking to be covered by the Agreement).

[4] I note that the notification time for the Agreement was late October 2019, but the Notice of Employee Representational Rights was issued to relevant employees on 29 November 2019. I consider this delay to be a minor technical or procedural error under s.173(3) of the Act, and therefore consider the Agreement to have been genuinely agreed to (notwithstanding the error, as no employee has been disadvantaged (see: s.188(2) of the Act)).

[5] The Employer has provided written undertakings dated 18 March 2020. Those undertakings are attached at Annexure A to this decision and become terms of the Agreement. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement (as compared to the relevant provisions of the Rail Industry Award 2010), and that the undertakings will not result in substantial changes to the Agreement.

[6] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act, as are relevant to this application for approval, have been met.

[7] I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] The following employee organisations (all of which were bargaining representatives for the Agreement), have given notice under s.183 of the Act that they want to be covered by the Agreement:

a) Australian Rail, Tram and Bus Industry Union;

b) Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and

c) “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.

[9] In accordance with s.201(2) of the Act, I note that the Agreement covers the foregoing organisations.

[10] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 2 April 2020. Despite the somewhat equivocal wording of clause 5.1 of the Agreement, the nominal expiry date of the Agreement is to be 24 months from the date the Agreement takes effect (i.e. 31 March 2022).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<AE507535  PR717739>

Annexure A