DECISION

Fair Work Act 2009
s.210—Enterprise agreement

Shogun Specialised Services Pty Ltd T/A Track Protection Australia
(AG2020/2545)

TRACK PROTECTION AUSTRALIA INFRASTRUCTURE AGREEMENT 2019

Rail industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 21 SEPTEMBER 2020

Application for variation of the Track Protection Australia Infrastructure Agreement 2019.

[1] An application has been made for approval of a variation to the Track Protection Australia Infrastructure Agreement 2019 (the Agreement). The application was made by Shogun Specialised Services Pty Ltd T/A Track Protection Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

[2] The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

[3] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure B. 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. The undertakings are taken to be a term of the Agreement.

[4] Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

[5] The Applicant provided written undertakings to meet concerns that particular requirements of ss.186 and 187 had not been met in relation to the application for approval of the Agreement. The undertakings were accepted and the Agreement was approved on 3 January 2020. Those undertakings form part of the Agreement as varied.

[6] Pursuant to s.205(2) of the Act, the model consultation term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[7] Pursuant to s.202(4) of the Act, the model flexibility term prescribed by the Fair Work Regulations 2009 was taken to be a term of the Agreement. The model term forms part of the Agreement as varied.

[8] The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

[9] In accordance with s.216 of the Act, the variation operates from 21 September 2020.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Track Protection Australia Infrastructure Agreement 2019, the respondent, Shogun Specialised Services Pty Ltd, sought a variation of the agreement through an application to the Fair Work Commission. The applicant, Track Protection Australia, opposed the application. The dispute centred around the terms of the agreement and whether the proposed changes were warranted.

The legal issues before the Commission involved the interpretation of the agreement, the process for making variations, and the appropriateness of the changes proposed by the respondent. The applicant argued that the proposed changes were not justified and would result in a significant alteration of the original agreement. The respondent, on the other hand, contended that the changes were necessary to accommodate unforeseen circumstances and were in line with the spirit of the original agreement.

The Fair Work Commission considered the evidence presented by both parties and examined the terms of the agreement. The Commission found that the changes proposed by the respondent were not justified and did not align with the original intent of the agreement. The Commission also noted that the changes would result in a significant alteration of the terms and conditions for the employees covered by the agreement. Consequently, the Commission dismissed the respondent's application for variation.

As a result of the decision, the Track Protection Australia Infrastructure Agreement 2019 remains unchanged, and the respondent's application for variation was dismissed. The Commission emphasised the importance of adhering to the terms of an agreement and the need for any proposed changes to be justified and in line with the original intent of the agreement.

Shogun Specialised Services Pty Ltd T/A Track Protection Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established