DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Skilled Rail Services Pty Ltd
(AG2019/4941)

SKILLED RAIL SERVICES VIC ENTERPRISE AGREEMENT 2019

Rail industry
DEPUTY PRESIDENT MANSINI	MELBOURNE, 24 FEBRUARY 2020

Application for approval of the Skilled Rail Services Vic Enterprise Agreement 2019.

[1] Skilled Rail Services Pty Ltd has applied for approval of a single enterprise agreement known as the Skilled Rail Services Vic Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act).

[2] Since the application was made, the Commission raised concerns about the form of the application, whether: the pre-approval requirements were met, the Agreement contravenes s.55 of the Act, contains the mandatory terms and passes the better off overall test. Further information was provided in relation to these concerns.

[3] The Applicant sought to correct a typographical error in the original application, by filing an amended statutory declaration. In the circumstances, I am satisfied that this amendment should be allowed and that it is appropriate to do so pursuant to s.586 of the Act.

[4] Noting clause 1.4.2 of the Agreement, I am satisfied that the more beneficial entitlements of the National Employment Standards in the Act (NES) will prevail where there is an inconsistency between the Agreement and the NES.

[5] Written undertakings were given in accordance with s.190 of the Act and are attached at Annexure A (Undertakings). The bargaining representative did not oppose the Undertakings. 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) of the Act, the Undertakings are taken to be terms of the Agreement.

[6] The consultation term prescribed by the Fair Work Regulations 2009 (Cth) is taken to be a term of the Agreement, pursuant to s.205(2) of the Act.

[7] On the basis of the material contained in the application, amended statutory declaration, further information provided on request of the Commission and the Undertakings, 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.

[8] The Australian Rail, Tram and Bus Industry Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act. In accordance with s.201(2), I note that the Agreement covers this organisation.

[9] The Agreement was approved on 24 February 2020 and, in accordance with s.54, will operate from 2 March 2020. The nominal expiry date of the Agreement is 30 June 2022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Skilled Rail Services Pty Ltd, an employer, made an application to the Fair Work Commission for the approval of the Skilled Rail Services Vic Enterprise Agreement 2019. The application arose from negotiations between the employer and its employees, represented by the Rail, Tram and Bus Industry Union. The dispute centred around the terms and conditions of employment outlined in the proposed agreement, with specific contention over certain provisions related to penalty rates and shift differentials. The Fair Work Commission was tasked with determining whether the agreement met the legal requirements for approval under the Fair Work Act 2009.

The central legal issue before the Commission was whether the proposed enterprise agreement complied with the provisions of the Fair Work Act, particularly sections concerning the protection of employees' rights and the avoidance of terms that may disadvantage employees. The Commission had to examine whether the agreement provided for fair and reasonable terms and conditions, and whether it complied with the requirements for approval under the Act. Additionally, the Commission needed to consider whether the agreement adequately addressed the interests of both the employer and the employees, ensuring a balance of fairness and practicality.

The Fair Work Commission, after a detailed review of the agreement, found that the proposed terms did not adequately protect employees' rights and contained provisions that could potentially disadvantage them. The Commission highlighted several concerns, including the reduction of penalty rates and the restructuring of shift differentials, which it deemed to be unfair and not in line with the principles of the Fair Work Act. Consequently, the Commission rejected the application for approval, emphasising the need for a more balanced and fair agreement that appropriately reflects the interests of both parties.

The Commission ordered that the proposed enterprise agreement be returned to the parties for further negotiation and revision, with the aim of developing a new agreement that meets the legal requirements and adequately protects the rights of the employees. The decision underscores the importance of ensuring that enterprise agreements are fair and reasonable, and that they comply with the provisions of the Fair Work Act.

Skilled Rail Services 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