Rhomberg Rail Australia Pty Ltd

[2021] FWCA 6985

[2021] FWCA 6985

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Rhomberg Rail Australia Pty Ltd
(AG2021/7868)

RHOMBERG RAIL AUSTRALIA PTY LTD ENTERPRISE AGREEMENT 2021-2024

Rail industry
DEPUTY PRESIDENT ASBURY	BRISBANE, 3 DECEMBER 2021

Application for approval of the Rhomberg Rail Australia Pty Ltd Enterprise Agreement 2021-2024

[1] Rhomberg Rail Australia Pty Ltd (the Applicant) applies to the Fair Work Commission (the Commission) for approval of an enterprise agreement known as the Rhomberg Rail Australia Pty Ltd Enterprise Agreement 2021-2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

[2] Undertakings were provided by the Employer in response to concerns the Commission held in relation to whether the Agreement passes the better off overall test. A copy of the Undertakings is attached as Annexure A to this decision. I am satisfied that the effect of accepting the Undertakings is not likely to:

(a) cause financial detriment to any employee covered by the Agreement; or

(b) result in substantial changes to the Agreement.

[3] The views of each person or organisation the Commission knows is a bargaining representative for the Agreement have been sought in relation to the Undertakings. Pursuant to subsection 190(3) of the Act, I accept the Undertakings. In accordance with s.201(3) of the Act, a copy of the Undertakings will be attached to the Agreement and forms part of the Agreement.

[4] I observe that clause 3.6 of the Agreement relating to abandonment of employment may be inconsistent with the National Employment Standards (NES). However, I note clause 1.6 of the Agreement provides that where there is an inconsistency between a provision of the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. On this basis, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES. I also note that by virtue of s. 55 of the Act, an enterprise agreement must not exclude the NES or any provisions of the NES and s. 56 provides that a term of an enterprise agreement has no effect to the extent that it contravenes s. 55.

[5] The copy of the notice of employee representational rights (NERR) given to employees was not in the prescribed format, because it advised employees to contact employer representatives or FWC if they have any questions, where the prescribed NERR states “if employees have questions please speak to your employer or bargaining representative, or contact the Fair Work Ombudsman or the Fair Work Commission.”

[6] The Applicant responded to concerns about this issue by stating that the incorrect wording was used in the NERR because bargaining representatives had not been appointed at that stage and the Applicant was concerned that this would be confusing to some employees.

[7] Having regard to the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others, I am satisfied that this matter is a minor procedural or technical error and that pursuant to s. 188(2)(a) of the Act I can be satisfied that the Agreement would have been genuinely agreed but for this minor error. In this regard, I am satisfied that the employees covered by the Agreement were not likely to be disadvantaged by the errors. The Agreement replaces the Rhomberg Rail Australia Pty Ltd Enterprise Agreement 2018-2021 and is in similar terms to that Agreement. A majority of employees approved the Agreement. The Australian Rail, Tram and Bus Industry Union of Employees, a bargaining representative of employees, also supports the approval of the Agreement. Accordingly, there is no basis for finding that the error had any bearing on the outcome of the ballot to approve the Agreement.

[8] The Agreement does not contain a consultation term that is consistent with the requirements in s.205 of the Act. Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Clause 1.5 of the Agreement states the Agreement shall come into operation from the date of its lodgement with the Commission. This is inconsistent with s.54 of the Act which states that an enterprise agreement approved by the Commission operates from 7 days after the agreement is approved, or if a later day is specified in the agreement, that later day. Accordingly, the Agreement will operate 7 days from the date of this decision.

[10] I am satisfied, on the basis of information set out in the Form F16 Application for approval of an enterprise agreement, the Form F17 Employer’s declaration in support of an application for approval of the Agreement and responses to requests for further information provided by the Applicant, that each of the requirements of ss. l86, 187 and 188 as are relevant to this application for approval have been met. The Agreement does not cover all of the employees of the employer, however, taking into account s.186(3) and (3A), and on the basis of the information contained in the Form F17, I am satisfied that the group of employees covered by the Agreement was fairly chosen.

[11] The Australian Rail, Tram and Bus Industry Union of Employees, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover that organisation. In accordance with s.201(2) of the Act, and based on the declaration provided by the organisation, I note that the Agreement covers this organisation.

[12] The Agreement is approved in accordance with s.54 of the Act and will operate from 10 December 2021. The nominal expiry date of the Agreement is 15 October 2024, being three years from the date of lodgement of the application for approval of the Agreement in the Commission which is the effect of clause 1.5.

DEPUTY PRESIDENT

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Annexure A