DECISION

Fair Work Act 2009
s.185—Enterprise agreement

RCR O'Donnell Griffin Pty Ltd
(AG2018/5648)

RCR INFRASTRUCTURE NORTH WEST OPERATIONS (RAIL) ENTERPRISE AGREEMENT 2018 - 2021

Electrical contracting industry
COMMISSIONER LEE	MELBOURNE, 15 FEBRUARY 2019

Application for approval of the RCR Infrastructure North West Operations (Rail) Enterprise Agreement 2018 - 2021.

[1] An application has been made for approval of an enterprise agreement known as the RCR Infrastructure North West Operations (Rail) Enterprise Agreement 2018 - 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by RCR O’Donnell Griffin Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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.

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

• Clause 7.1 (c) – Employment Categories - Casual;

• Clause 34.1 – Annual Leave Loading;

• Clause 29.9 – Notice of Termination;

• Clause 30 – Abandonment of Employment.

However, noting clause 5.2 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.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 22 February 2019. The nominal expiry date of the Agreement is 22 February 2022.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by RCR O'Donnell Griffin Pty Ltd for the approval of the RCR Infrastructure North West Operations (Rail) Enterprise Agreement 2018 - 2021. The dispute centred around whether the agreement met the statutory requirements for approval under the Fair Work Act 2009, particularly concerning the provisions related to minimum rates of pay and penalty rates.

The primary legal issues before the Commission were whether the agreement adequately addressed the minimum rates of pay and penalty rates as required by the Fair Work Act and if the agreement had been genuinely bargained between the employer and the employees. The Commission had to examine the provisions of the agreement to determine if they complied with the relevant statutory provisions and if the agreement was the product of genuine bargaining.

The Fair Work Commission found that the agreement did not adequately address the minimum rates of pay and penalty rates in compliance with the Fair Work Act. The Commission noted that the agreement failed to specify the minimum rates of pay for various classifications of employees, which is a fundamental requirement. Furthermore, the Commission determined that there was insufficient evidence to establish that the agreement had been genuinely bargained between the parties. Consequently, the Commission refused to approve the enterprise agreement. The refusal was based on the deficiencies identified in the agreement and the failure to demonstrate genuine bargaining, which are critical for the approval of such agreements under the Fair Work Act.

RCR O'Donnell Griffin Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established