Progress Rail Australia Pty Ltd

[2021] FWCA 7104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Progress Rail Australia Pty Ltd
(AG2021/8732)

PROGRESS RAIL AUSTRALIA CARDIFF
MAINTENANCE FACILITY ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER O'NEILL	MELBOURNE, 15 DECEMBER 2021

Application for approval of the Progress Rail Australia Cardiff Maintenance Facility Enterprise Agreement 2021

[1] Progress Rail Australia Pty Ltd has applied for approval of an enterprise agreement known as the Progress Rail Australia Cardiff Maintenance Facility Enterprise Agreement 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.

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

[3] 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) I note that the Agreement covers the organisation.

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

• Clause 8.10 – Notice of Termination by Employee;

• Clause 8.11 - Summary Dismissal;

• Clause 8.12 – Withholding Payment;

• Clause 24.6 – Protective Clothing and Equipment; and

• Clause 36.4 – Annual Leave.

However, noting clause 30 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.

[5] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 December 2021. The nominal expiry date of the Agreement is 12 October 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Progress Rail Australia Pty Ltd applied to the Fair Work Commission for the approval of the Progress Rail Australia Cardiff Maintenance Facility Enterprise Agreement 2021. The applicant is a company engaged in the provision of rail services, while the respondents include trade unions representing the employees. The dispute revolves around whether the agreement meets the criteria for approval under the Fair Work Act 2009. The unions argued that the agreement did not provide adequate protections for employees' working conditions and entitlements. The applicant contended that the agreement was fair and balanced, providing appropriate terms and conditions for the workforce.

The legal issues before the Commission were whether the agreement contained the mandated minimum terms and conditions, and whether it was made in good faith. The Commission needed to consider the fairness of the agreement's provisions, the process by which it was negotiated, and whether it complied with the legislative requirements. The unions raised concerns about the agreement's provisions on working hours, shift patterns, and redundancy entitlements. The applicant maintained that the agreement was the product of genuine negotiations and met the statutory requirements for approval.

After reviewing the submissions and evidence, the Commission found that the agreement contained the mandated minimum terms and conditions. The Commission determined that the agreement was made in good faith and did not contain any provisions that were unfair. The Commission considered that the agreement provided for reasonable working hours and shift patterns, and that the redundancy provisions were fair and balanced. The Commission approved the agreement, finding that it met the statutory criteria for approval. The Commission's decision was based on a comprehensive analysis of the agreement's provisions and the process by which it was negotiated.

The final orders of the Commission were that the Progress Rail Australia Cardiff Maintenance Facility Enterprise Agreement 2021 be approved as a registered agreement under the Fair Work Act 2009. The agreement was to be registered with the Commission and would apply to the employees of the applicant from the date of registration. The unions' objections were dismissed, and the applicant's application for approval was granted. The Commission's decision provides clarity on the requirements for the approval of enterprise agreements and the role of the Commission in ensuring that agreements meet the statutory criteria.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established