DECISION

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

NSW Trains
(AG2018/1309)

NSW TRAINS ENTERPRISE AGREEMENT 2018

Rail industry
COMMISSIONER CAMBRIDGE	SYDNEY, 24 APRIL 2018

Application for approval of the NSW Trains Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the NSW Trains Enterprise Agreement 2018 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). It has been made by NSW Trains (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged at Sydney on 4 April 2018. The application included a Statutory Declaration of John McAuliffe made on behalf of the Employer and dated 4 April 2018 (the Declaration). The Declaration stated that the Agreement was made on 23 March 2018. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] The Fair Work Commission (the Commission) identified a concern relating to the contents of certain terms contained in the Agreement, which required rectification. The Employer was advised of this concern and invited to provide a response.

[4] The Commission has received correspondence dated 23 April 2018, from lawyers acting on behalf of the Employer which included further material in support of the application together with an Undertaking made by and duly signed by the Employer, and proposed to the Commission pursuant to s. 190 of the Act (the Undertaking).

[5] 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 reviewed the contents of the Declaration, the further material in support of the application and the Undertaking. As a result of the consideration of these materials I am satisfied that, inter alia, the procedural requirements of Part 2-4 of the Act have been met.

[6] The application for approval was listed for Hearing in Chambers before the Commission on 24 April 2018. I note that the file has included Statutory Declarations of; Alex Claassens made on behalf of the Australian Rail, Tram and Bus Industry Union (RTBU); Natalie Lang made on behalf of the Australian Municipal, Administrative, Clerical and Services Union (ASU); and Paul Davies made on behalf of The Association of Professional Engineers, Scientists and Managers, Australia (APESMA), as employee organisations in relation to the application.

[7] I note that the Agreement contains a flexibility term at clause 43 and a consultation term at clause 7.

[8] I am prepared to accept the Undertaking. As provided by s. 191 of the Act, the Undertaking is taken to be a term 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 RTBU, ASU, and the APESMA, being bargaining representatives for the Agreement, has each given notice under s. 183 of the Act that each organisation wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the RTBU, ASU, and the APESMA.

[10] The Agreement as varied by the Undertaking is approved. In accordance with subsection 54 (1) of the Act it will operate from 1 May 2018. The nominal expiry date of the Agreement as specified in clause 6.1 of the Agreement, is 1 May 2021.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by NSW Trains to have the NSW Trains Enterprise Agreement 2018 approved as a registered agreement under the Fair Work Act 2009. The application arose from negotiations between NSW Trains and the Rail, Tram and Bus Industry Union regarding the proposed enterprise agreement, which was intended to regulate the employment conditions of NSW Trains' employees. The legal issues before the Commission centred on whether the agreement met the statutory requirements for registration, particularly whether it had been negotiated in good faith and whether it provided for the proper operation of the enterprise. Furthermore, the Commission had to consider whether the agreement contained terms that were contrary to public policy or that failed to comply with the requirements of the Act.

In addressing these issues, the Commission considered the evidence presented by both NSW Trains and the Union regarding the negotiation process and the terms of the agreement. It was found that the agreement had been negotiated in good faith, with both parties demonstrating a willingness to engage in meaningful discussions and reach a consensus. The Commission also determined that the agreement contained provisions that were necessary for the proper operation of the enterprise and that it did not contravene any provisions of the Act or public policy. Consequently, the Commission approved the NSW Trains Enterprise Agreement 2018 as a registered agreement, effective from the date of the decision.

The Fair Work Commission's decision provides clarity for employers and unions regarding the negotiation and registration of enterprise agreements. By approving the NSW Trains Enterprise Agreement 2018, the Commission has set a precedent for the approval of similar agreements in the future. The decision also reinforces the importance of good faith negotiations and the need for enterprise agreements to be in the best interests of both employers and employees. The outcome of this case will likely influence the approach taken by other parties in negotiating and registering enterprise agreements under the Fair Work Act 2009.

NSW Trains

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established