Sydney Trains

[2023] FWCA 423

[2023] FWCA 423

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Sydney Trains

(AG2023/240)

Sydney Trains and NSW TrainLink Enterprise Agreement 2022

Rail industry
ACTING PRESIDENT HATCHER DEPUTY PRESIDENT CROSS CoMMISSIONER RIORDAN	SYDNEY, 10 FEBRUARY 2023

Application for approval of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.

1. An application has been made for approval of an enterprise agreement known as the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (Agreement). The application was made pursuant to s 185 of the Fair Work Act 2009 (FW Act). It has been made by Sydney Trains and NSW TrainLink (Employers). The matter was listed for hearing before the Full Bench on 8 and 9 February 2023.

1. The Employers bargained for the Agreement as single interest employers. In Application by Australian Rail, Tram and Bus Industry Union[1], Deputy President Bull, dealing with an application for a protected action ballot, found the Employers to be single interest employers. In particular, the Deputy President concluded that he was satisfied the Applicants were single interest employers, pursuant to s 172(5)(a) of the FW Act.[2]

1. The Employers sought, by a Form F1 filed on 8 February 2023, to correct identified numbering errors made in the table of contents and in the text of clauses of the Agreement. Those errors resulted in incorrect references within the text of clauses in the Agreement.

1. Section 218A of the FW Act provides:

218A Variation of enterprise agreements to correct or amend errors, defects or irregularities

(1)The FWC may vary an enterprise agreement to correct or amend an obvious error, defect or irregularity (whether in substance or form).

(2)The FWC may vary an enterprise agreement under subsection (1):

(a) on its own initiative; or

(b) on application by any of the following:

(i)      one or more of the employers covered by the agreement;

(ii)     an employee covered by the agreement;

(iii)    an employee organisation covered by the agreement.

(3)If the FWC varies an enterprise agreement under subsection (1), the variation operates from the day specified in the decision to vary the agreement.

1. The errors contained in the Agreement were obvious errors of the kind anticipated by s 218A, and no party objected to the correction of those errors. Accordingly, pursuant to s 218A, we vary the Agreement as made as sought in the Form F1. The variations will operate from 30 January 2023, the date that the Agreement was made.

1. Two written undertakings have been provided to address concerns identified in the Commission’s legislative checklist document provided to the parties on 9 February 2023. The Employers provided an undertaking that the National Employment Standards prescribed in Division 2, s 61 of the FW Act as in force or replaced from time to time will prevail to the extent of any inconsistency with the Agreement. A copy of that undertaking is attached and marked Annexure A. NSW TrainLink and the Australian Rail, Tram and Bus Industry Union (RTBU) provided a further undertaking regarding errors in the drafting of clause 199.6 of the Agreement. A copy of that undertaking is attached and marked Annexure B. We have sought the views of each person who is a bargaining representative for the Agreement, and none opposes acceptance of the undertakings. We are satisfied that the undertakings are not likely to cause financial detriment to any employee covered by the Agreement or to result in substantial changes to the Agreement, and we are further satisfied that the undertakings meet the concerns they are intended to address. Accordingly, we accept the undertakings pursuant to s 193 of the FW Act.

1. On the basis of the undertakings we have accepted, we are satisfied that each of the requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The following bargaining representatives have given notice under s 183 of the Act that they want the Agreement to cover them:

·RTBU;

·“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU);

·The Association of Professional Engineers, Scientists and Managers, Australia;

·The Australian Workers’ Union;

·Construction, Forestry, Maritime, Mining and Energy Union;

·Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and

·Australian Municipal, Administrative, Clerical and Services Union,

1. In accordance with s 201(2) of the FW Act, we note that the Agreement covers the above organisations.

1. The Agreement is approved and, in accordance with s 54 of the Act, will operate from 17 February 2023. The nominal expiry date of the Agreement is 1 May 2024.

ACTING PRESIDENT

Annexure A

Annexure B

[1] [2021] FWC 4391 at [10]-[20]

[2] Ibid at [20]

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