Shogun Specialised Services Pty Ltd T/A Track Protection Australia

[2022] FWCA 3791

[2022] FWCA 3791

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.222—Enterprise agreement

Shogun Specialised Services Pty Ltd T/A Track Protection Australia

(AG2022/4290)

Track Protection Australia Infrastructure Agreement 2019

Rail industry
COMMISSIONER YILMAZ	MELBOURNE, 27 OCTOBER 2022

Application for termination of the Track Protection Australia Infrastructure 2019.

1. Shogun Specialised Services Pty Ltd (the Applicant) has made an application pursuant to s.222 of the Fair Work Act 2009 (Cth) (the Act) for approval to terminate the Track Protection Australia Infrastructure Agreement 2019[1] (the Agreement). The Applicant is the employer covered by the Agreement.

1. The Agreement is a single enterprise agreement and was approved by the Commission on 3 January 2020. It has a nominal expiry date of 30 December 2023.

1. The relevant provisions of the Act are as follows:

“222 Application for the FWC’s approval of a termination of an enterprise agreement

Application for approval

(1)   If a termination of an enterprise agreement has been agreed to, a person covered by the agreement must apply to the FWC for approval of the termination.

Material to accompany the application

(2)   The application must be accompanied by any declarations that are required by the procedural rules to accompany the application.

When the application must be made

(3)   The application must be made:

(a)   within 14 days after the termination is agreed to; or

(b)   if in all the circumstances the FWC considers it fair to extend that period—within such further period as the FWC allows.

1. Section 223 of the Act provides:

“223 When the FWC must approve a termination of an enterprise agreement

If an application for the approval of a termination of an enterprise agreement is made under section 222, the FWC must approve the termination if:

(a)   the FWC is satisfied that each employer covered by the agreement complied with subsection 220(2) (which deals with giving employees a reasonable opportunity to decide etc.) in relation to the agreement; and

(b)   the FWC is satisfied that the termination was agreed to in accordance with whichever of subsection 221(1) or (2) applies (those subsections deal with agreement to the termination of different kinds of enterprise agreements by employee vote); and

(c)   the FWC is satisfied that there are no other reasonable grounds for believing that the employees have not agreed to the termination; and

(d)   the FWC considers that it is appropriate to approve the termination taking into account the views of the employee organisation or employee organisations (if any) covered by the agreement.”

1. Section 224 of the Act provides as follows:

“224 When termination comes into operation

If a termination of an enterprise agreement is approved under section 223, the termination operates from the day specified in the decision to approve the termination.

1. The application was supported by a Statutory Declaration made by Mr James Davidson, General Manager of the Applicant on 11 October 2022.

1. Mr Davidson declared, among other things, that of the 124 employees covered by the Agreement, 83 cast a valid vote in relation to whether the Agreement should be terminated and 83 voted to terminate the Agreement. Mr Davidson further declared that the termination was agreed to on 27 September 2022.

1. Mr Davidson further declared that information sessions were held to explain the termination of the Agreement and its replacement by the Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022[2] (the Replacement Agreement). I note that the Australian Rail, Tram and Bus Industry Union is covered by the Replacement Agreement and has indicated its support for the termination of the current Agreement.

1. Based on the material that is before the Commission, including Mr Davidson’s statutory declaration, I am satisfied that the requirements of s.223 of the Act have been met and the matter can be determined on the papers. In particular, I am satisfied that:

   (a)the Applicant complied with s.220(2) of the Act in relation to the Agreement;

   (b)the termination of the Agreement was agreed to in accordance with s.221(1) of the Act;

   (c)there are no other reasonable grounds for believing that the employees covered by the Agreement have not agreed to the termination; and

   (d)it is appropriate to approve the termination of the Agreement taking into account the views of the employee organisations covered by the Agreement.

2. I note that the Replacement Agreement will commence operation from 2 November 2022. In accordance with s.224 of the Act, I consider it appropriate for the termination of the Agreement to operate concurrently with the operative date of the Replacement Agreement.

1. Accordingly, the termination will operate from 2 November 2022.

COMMISSIONER

[1] AE506661.

[2] AE517962.

Printed by authority of the Commonwealth Government Printer

<AE506661  PR747311>