Railtrain Pty Ltd

[2022] FWCA 635

[2022] FWCA 635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Railtrain Pty Ltd

(AG2022/462)

Railtrain Pty Ltd Rail Construction Pilbara Enterprise Agreement 2016

Building, metal and civil construction industries
DEPUTY PRESIDENT BEAUMONT	PERTH, 28 FEBRUARY 2022

Application for termination of the Railtrain Pty Ltd Rail Construction Pilbara Enterprise Agreement 2016

1. This decision concerns an application made by Railtrain Pty Ltd (the Applicant) on 22 February 2022 for the termination of the Rail Train Pty Ltd Rail Construction Pilbara Enterprise Agreement 2016[1] (the Agreement) made under s 225 of the Fair Work Act 2009 (the Act).  The Agreement passed its nominal expiry date on 28 January 2020. 

1. Section 225 of the Act allows an employer to apply to the Commission for the termination of an agreement that has passed its nominal expiry date.

1. Section 226 of the Act, set out below, details the considerations for the Commission when dealing with such an application.

226        When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a)       the FWC is satisfied that it is not contrary to the public interest to do so; and

(b)       the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i)          the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii)         the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.

1. In support of its application, the Applicant has provided a declaration from Mr Paul Pager, National IR Manager for the Applicant.  Mr Pager reports that there are no employees covered by the Agreement.  Mr Pager provided evidence derived from the Applicant’s payroll system identifying the relevant industrial instruments covering existing employees of the Applicant.  None of those employees were shown to be covered by the Agreement. 

1. According to Mr Pager, the Railtrain Holding Group, of which the Applicant appears to be a subsidiary, has another subsidiary company with a current enterprise agreement in place that covers rail construction in the Pilbara region of Western Australia.  Mr Pager explained that the subsidiary company referred to was RMC Track & Civil Pty Ltd and the enterprise agreement, was the RMC Track and Civil Pty Ltd Enterprise Agreement 2019.[2]

Consideration

1. I am satisfied that the termination of the Agreement is not contrary to the public interest; and in the circumstances of this case, it is appropriate to terminate the Agreement.

1. The views of the employer have been considered and I accept Mr Pager’s statement in his declaration that there are no employees covered by the Agreement. 

1. Accordingly, the Agreement is terminated. Pursuant to s 227 of the Act the termination is to take effect on and from the date of this decision.

DEPUTY PRESIDENT

[1] [2016] FWCA 560; AE417598; PR576503.

[2] [2019] FWCA 5280; AE504656; PR710824.

Printed by authority of the Commonwealth Government Printer

<AE417598  PR738651>