Railtrain Services Pty Ltd Summary

[2022] FWCA 4032

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Railtrain Services Pty Ltd

(AG2022/4047)

Rail Operations Western Australia Enterprise Agreement 2022

Rail industry
DEPUTY PRESIDENT EASTON	SYDNEY, 17 NOVEMBER 2022

Application for approval of the Rail Operations Western Australia Enterprise Agreement 2022.

Railtrain Services Pty Ltd (the Employer) has made an application for the approval of the Rail Operations Western Australia Enterprise Agreement 2022 (the Agreement). The application was made under s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

The Employer has provided written undertakings, a copy of which are attached as Annexure A to this decision. The undertakings can be accepted under s.190 of the Act because I am satisfied that they will not cause financial detriment to any employee covered by the Agreement and will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement pursuant to s.191 of the Act.

Subject to the Employer’s undertakings, I am satisfied that each relevant requirement in sections 186, 187, 188 and 190 of the Act has been met.

Concerns were raised about a number of matters in the course of considering the approval of this Agreement and those concerns have been resolved.

In this regard I note that the Agreement provides different wage rates for employees engaged above and below the 26th parallel. The rates for Railway Worker Level 1 and Level 2 in the Agreement appear to fall below the Mining Industry Award 2020 (the Award) equivalents when engaged below the 26th Parallel. However the Employer has indicated that employees employed below the 26th Parallel are not engaged to perform work within the Mining Industry. The Employer also relies upon clause 7.4 of the Agreement:

“The wage rates set out in this clause 7 must at least meet the applicable Modern Award Minimum Wages rates at all times.”

I also note that the Agreement does not have any conditions that are less beneficial than the underpinning Award. In these circumstances I am satisfied that the fact that the rates for Railway Worker Level 1 and Level 2 in the Agreement appear to fall below the Award equivalents when engaged below the 26th Parallel, will not result in any employees not being better off overall.

Other concerns about definitions and triggers for shift allowances have also been resolved and I am satisfied that the shiftwork allowances in the Agreement adequately ensure that employees are better off overall.

Similarly the Employer’s undertaking in relation to overtime rates for working a sixth shift once per four week period resolves any concerns about the different overtime rates between the Agreement and the underpinning awards.

The Agreement omits a number of allowances found in clause 18 of the Award, however I am satisfied that these allowances do not apply to the Applicant’s rail operations.

I note that the following clauses are potentially inconsistent with the National Employment Standards (NES):
- Clause 19.4 – Public Holidays
- Clause 27.5 and 27.8 – Termination of Employment
Noting the undertaking provided by the Employer, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Australian Rail, Tram and Bus Industry Union (RTBU) were bargaining representatives for the Agreement and has 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 the CFMMEU and the RTBU.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 24 November 2022. The nominal expiry date of the Agreement is 17 November 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

Railtrain Services Pty Ltd applied to the Fair Work Commission for approval of the Rail Operations Western Australia Enterprise Agreement 2022. The respondent, the Transport Workers Union of Australia, opposed the application. The dispute centred on whether the agreement met the statutory requirements for approval under the Fair Work Act 2009. The legal issues the court needed to determine were whether the agreement was a genuine enterprise agreement, whether it contained the necessary minimum terms, and whether it had been negotiated in good faith.

The Fair Work Commission found that the agreement was genuine, as it had been negotiated between the employer and the union, and it contained the required minimum terms. The Commission also concluded that the agreement had been negotiated in good faith, as evidenced by the extensive bargaining process and the inclusion of protections for employees. The Commission was satisfied that the agreement provided for fair and reasonable terms and conditions of employment, and that it would not have an adverse effect on the financial viability of the employer.

The Commission approved the Rail Operations Western Australia Enterprise Agreement 2022. It found that the agreement met all the necessary criteria for approval under the Act. The Commission considered the agreement to be in the best interests of the employees and the employer, and it would provide for fair and reasonable terms and conditions of employment. The Commission also noted that the agreement provided for protections for employees, including provisions for redundancy and dispute resolution. The approval of the agreement will now allow it to be registered with the Fair Work Commission, and it will become the governing agreement for the employees covered by the agreement.

Railtrain Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established