Rail Commissioner

[2023] FWCA 668

[2023] FWCA 668

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Rail Commissioner

(AG2023/341)

Rail Commissioner Maintenance Employees Enterprise Agreement 2023

Rail industry
COMMISSIONER PLATT	ADELAIDE, 6 MARCH 2023

Application for approval of the Rail Commissioner Maintenance Employees Enterprise Agreement 2023.

1. An application has been made for approval of an enterprise agreement known as the Rail Commissioner Infrastructure Employees Enterprise Agreement 2023 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Rail Commissioner (the Applicant). The agreement is a single enterprise agreement.

1. The matter was allocated to my Chambers on 22 February 2023.

1. On 28 February 2023, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters.

1. The following National Employment Standards (NES) issues require comment:

·   Notice of Termination (Clause 13.1.5): The Agreement excludes apprentices from the notice provisions contained in the Agreement. Apprentices do not fall within the group of employees excluded from notice as set out in s.123 of the Act, and therefore clause 13.1.5 with respect to apprentices appears inconsistent with the Act

·   Abandonment of employment: Clause 13.3 states that an employee will be deemed to have abandoned their employment after 14 days of unauthorised absence and in such cases, the notice provisions of the Agreement will not be applied. This may be inconsistent with the NES at section 117 of the Act. 

·   Personal Leave (Clause 38.2): The Agreement requires an employee to give notice of their intention to take personal leave prior to the commencement of the employee’s shift. This appears inconsistent with s.107(2)(a) of the Act which permits notice to be given after the leave has started.

1. Clause 22 of the Agreement acts as an effective NES precedence clause, in that it states that in the event of an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES will apply to the extent of the inconsistency. As a result of the NES precedence clause, the above clause(s) will not apply to the extent that they are inconsistent with the NES.

1. The “Australian Workers’ Union”, and “Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia” 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) of the Act I note that the Agreement covers these organisations.

Approval

1. 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.

1. The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 29 February 2024.

COMMISSIONER

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