Progress Rail Australia Pty Ltd

[2019] FWCA 6658

[2019] FWCA 6658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Progress Rail Australia Pty Ltd
(AG2019/3048)

PROGRESS RAIL PORT AUGUSTA ENTERPRISE AGREEMENT 2019

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 1 OCTOBER 2019

Application for approval of the Progress Rail Port Augusta Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Progress Rail Port Augusta Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Progress Rail Australia Pty Ltd. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 30 August 2019.

[3] On 20 September 2019, 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 Applicant has submitted an undertaking in the required form dated 23 September 2019. The undertaking deals with the following topics:

•  The Applicant provides that employees are entitled to annual leave as expressed in weeks rather than weeks and hours, in accordance with the National Employment Standards (NES).

•  The Applicant provides that when an employee seeks to ‘cash out’ their annual leave, they may do so providing they have 4 weeks remaining, in accordance with the NES.

•  Clause 48.3, which required the return of company property prior to termination payments being made, will not operate in the Agreement.

[5] Further to the operation of the undertakings as provided, it is noted that the Agreement contains a NES precedence clause, at clause 6. This provides that the “NES will prevail over this Agreement where, in a particular respect, it provides a more favourable outcome for employees”.

[6] 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 representative that responded supported the undertaking.

[7] 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.

[8] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[9] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act I note that the Agreement covers this organisation.

[10] 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.

[11] 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 30 June 2022.

COMMISSIONER

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