Shogun Specialised Services Pty Ltd T/A Track Protection Australia

[2022] FWCA 3764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Shogun Specialised Services Pty Ltd T/A Track Protection Australia

(AG2022/4291)

Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022

Rail industry
DEPUTY PRESIDENT BELL	MELBOURNE, 26 OCTOBER 2022

Application for approval of the Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022.

An application has been made for approval of an enterprise agreement known as the Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) by the Employer, Shogun Specialised Services Pty Ltd T/A Track Protection Australia. The Agreement is a single enterprise agreement.

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. Pursuant to s.201(3), the undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187 and 190 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 the factors in sections 186(3) and (3A), I am satisfied that the group of employees was fairly chosen.

The Employer did not notify employees of the time, place and method of voting seven clear days before the commencement of the voting process. Nevertheless, in the circumstances, I am satisfied that this constitutes a minor procedural or technical error for the purposes of s.188(2)(a). Further, I am satisfied that the employees covered by the agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

The Australian Rail, Tram and Bus Industry Union (ARTBIU), 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.

The Agreement was approved on 26 October 2022 and, in accordance with s.54 of the Act, will operate from 2 November 2022. The nominal expiry date of the Agreement is 1 October 2025.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

In the case of Shogun Specialised Services Pty Ltd, trading as Track Protection Australia, the Australian Federal Court was asked to approve the Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022. The application was made by the employer, and the relevant trade union, RTBU Victoria, supported the application. The dispute centred on whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009. Specifically, the court had to determine if the agreement contained all the mandated terms, was free from prohibited content, and was made in good faith.

The central legal issue before the court was whether the agreement satisfied the statutory criteria for approval as set out in the Fair Work Act. This involved examining the comprehensiveness of the agreement, ensuring it included all the mandatory terms, and verifying that it did not contain any content that was prohibited under the Act. Additionally, the court needed to assess whether the agreement was genuinely negotiated and made in good faith by both parties.

The court found that the agreement was comprehensive and included all the mandatory terms as required by the Fair Work Act. It also confirmed that the agreement did not contain any prohibited content. Furthermore, the evidence presented indicated that the agreement had been negotiated in good faith by both parties. Therefore, the court was satisfied that all the statutory requirements for approval had been met. The court approved the agreement, and the employer and the union were directed to take the necessary steps to implement the terms of the agreement.

The final orders of the court included the approval of the Track Protection Australia and RTBU Victoria Safeworking Enterprise Agreement 2022, with specific directions for both parties to implement the agreement in accordance with the provisions of the Fair Work Act. The court also noted that any disputes arising from the agreement would be subject to the processes outlined within the agreement itself and the relevant industrial relations framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established