RAILWAY TRANSPORT SERVICES PTY LTD ENTERPRISE AGREEMENT 2014

[2015] FWCA 3670

[2015] FWCA 3670

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Railway Transport Services Pty Ltd T/A Cartage Australia
(AG2015/624)

RAILWAY TRANSPORT SERVICES PTY LTD ENTERPRISE AGREEMENT 2014

Road transport industry
COMMISSIONER ROBERTS	SYDNEY, 29 MAY 2015

Application for approval of the Railway Transport Services Pty Ltd Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Railway Transport Services Pty Ltd Enterprise Agreement (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by Railway Transport Services Pty Ltd t/a Cartage Australia. The Agreement is a single enterprise agreement.

[2] A form F18 was subsequently lodged by the Transport Workers Union of Australia Victorian Tasmanian Branch (the TWU), which was a bargaining representative for the Agreement, setting out a number of alleged deficiencies in the Agreement but supporting its approval and giving notice that it wanted to be covered by the Agreement should it be approved.

[3] The TWU form F18 was supplied to the Applicant Company and the Company subsequently replied to several points raised. The TWU was not satisfied by the response as to all of the matters it had raised. In this context, I note that my Chambers conducted an analysis in relation to the Better Off Overall Test (BOOT) and that analysis showed that the Agreement met the BOOT. The Union did not dispute the BOOT issue. The application then came on before me for hearing in Sydney via videolink on 13 May 2015. The Company was represented by Mr W Vella and the Union by Mr H Smith with Ms S Manos.

[4] At the conclusion of the hearing on 13 May 2015 the parties undertook to provide further written material to me and agreed that my ultimate decision would be based on that material and those materials in the Commission’s file together with the transcript of the 13 May hearing. Both parties submitted further material and the process was completed by 19 May 2015.

[5] Overall, I am satisfied that the Agreement meets the conditions for approval with the exception of parts of Clauses 8 (New Employees) and Clause 16 (Stand Down of Employees).

[6] The penultimate sentence of Clause 8 currently provides:

“The employer may terminate the employment prior to the end of the probationary period with no notice period.”

[7] The provision set out above is not permissible and I require an Undertaking from the Company that it will not be applied and that persons terminated during a probation period will be given or paid out one week’s notice.

[8] Clause 16 currently provides at sub-clause 16.6:

“The employer shall not deduct payment for any day prescribed by the Agreement as a public holiday if the public holiday falls in the period of stand down and as such the public holiday shall be excluded as part of any stand down period. If the employer requires, an employee claiming payment for a holiday must provide the employer with a statutory declaration setting out details of any other employment during the stand down period and the remuneration for that employment.”

[9] In relation to Clause 16.6 of the Agreement, I take issue with the final sentence of that sub-clause. Here I note that the Company has offered to undertake to not rely upon that final sentence and I require an Undertaking to that effect.

[10] Subject to receipt of satisfactory Undertakings as referred to above, I will then move to approve the Agreement.

COMMISSIONER

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