Progress Rail Australia Pty Ltd

[2019] FWCA 619

[2019] FWCA 619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Progress Rail Australia Pty Ltd
(AG2018/7184)

PROGRESS RAIL TOWNSVILLE MAINTENANCE FACILITY ENTERPRISE AGREEMENT 2018

Manufacturing and associated industries
COMMISSIONER LEE	MELBOURNE, 4 FEBRUARY 2019

Application for approval of the Progress Rail Townsville Maintenance Facility Enterprise Agreement 2018.

[1] An application has been made for approval of an enterprise agreement known as the Progress Rail Townsville Maintenance Facility 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 Progress Rail Australia Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

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

[4] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[5] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[6] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Rail, Tram and Bus Industry Union being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

[7] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

•  Clause 31 - Annual leave

•  Clause 32.3.1 – Personal sick and Carer’s leave

•  Clauses 34.1 & 34.3(ii) - Parental leave

•  Clause 44.3 – Termination by Abandonment of employment

•  Clause 45.3 – Redundancy

However, noting clause 7 of the Agreement, 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 Agreement is approved and, in accordance with s.54 of the Act, will operate from 11 February 2019. The nominal expiry date of the Agreement is 10 February 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<AE501584  PR704507>

Annexure A