Swetha International Pty Ltd

[2016] FWCA 809

[2016] FWCA 809

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Swetha International Pty Ltd
(AG2015/6858)

SWETHA INTERNATIONAL PTY LTD RAIL SAFE WORKING PERSONNEL NEW SOUTH WALES ENTERPRISE AGREEMENT 2015

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 FEBRUARY 2016

Application for approval of the Swetha International Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Swetha International Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Swetha International Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2015 (the ‘Agreement’). The Agreement is to cover 129 labour hire/casual employees who are engaged in the provision of protection and signalling services in the Rail Industry, based in New South Wales.

[2] The employees were last notified of their representational rights on 11 November 2015 and voting for the Agreement’s approval took place on 2 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 66 of the 79 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 4 December 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Challa, Director identified the Rail Industry Award 2010 [MA000015] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Challasaid that the Agreement provides conditions that are in excess of, or are more beneficial than the terms of the relevant reference instrument and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 37 and 34 respectively, and a disputes resolution procedure at clause 36 provides for conciliation and arbitration by the Commission.

[4] At an initial hearing of the application on 14 December 2015, Mr P Challa appeared for the applicant and outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. He said that the Agreement was vital in ensuring competitive contracts in the industry were able to be won by the Company. He stressed that unless the applicant could tender on the rates and conditions in the Agreement, even though they remained in excess of the Modern Award, there was a real likelihood of loss of contracts and jobs.

[5] As the Agreement named the Australian Rail, Tram and Bus Industry Union (the ‘Union’) as a party, I adjourned the proceedings to seek the views of the Union as to the Agreement’s approval. The Commission conducted further conferences with the applicant and the Union on 15 January and 4 February 2016, at which Ms Bennett for the Union acknowledged the highly competitive nature of the industry and the difficulties the applicant was facing. As a result, the Union did not oppose the Agreement being approved by the Commission but, for policy reasons, requested that the Agreement be amended so that it was no longer named as a party to it. By consent, I shall delete the reference to the Union at clauses 2 and 4 of the Agreement.

[6] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Swetha International Pty Ltd Rail Safe Working Personnel New South Wales Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 11 February 2016 and have a nominal expiry date of 30 January 2018.

DEPUTY PRESIDENT

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