The Trustee For National Rail Solutions Trust National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd

[2020] FWCA 5626

[2020] FWCA 5626

FAIR WORK COMMISSION

DECISION

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

The Trustee For National Rail Solutions Trust National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd
(AG2020/2798)

NATIONAL RAIL SOLUTIONS PTY LTD INFRASTRUCTURE AGREEMENT 2020

Rail industry
COMMISSIONER BOOTH	BRISBANE, 22 OCTOBER 2020

Application for approval of the National Rail Solutions Pty Ltd Infrastructure Agreement 2020.

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) by The Trustee For National Rail Solutions Trust National Rail Solutions Pty Ltd T/A National Rail Solutions Pty Ltd (the Applicant) for approval of the National Rail Solutions Pty Ltd Infrastructure Agreement 2020 (the Agreement). The Agreement is a single enterprise agreement.

[2] Mr Mark Diamond, National Secretary of the Australian Rail, Tram and Bus Industry Union (RTBU), filed a Form F18 in this matter, advising that the RTBU supports approval of the Agreement by the Commission, and providing notice under s.183 of the Act that it wants the Agreement to cover it.

[3] Correspondence was sent to the Applicant on 8 October 2020, raising certain concerns in relation to the Agreement and seeking responses and undertakings from the Applicant. The Applicant filed undertakings addressing the concerns raised on 13 October 2020. The RTBU was provided with copies of the proposed undertakings.

[4] The matter was listed for eHearing on 21 October 2020. Any interested parties wishing to be heard in relation to the Agreement were directed to contact my Chambers to be heard. No parties contacted my Chambers.

[5] The undertakings meet the requirements of s.190(3) of the Act and I have accepted them. As a result, the undertakings are then to be a term of the Agreement and are attached to this Decision as Attachment A.

[6] I observe that the following provision is likely to be inconsistent with the National Employment Standards (NES):

•  Clause 16.2 – Annual leave; and

•  Clause 16.8 – Personal leave.

[7] However, noting clause 1.4.2 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[8] It is noted that the consultation term at clause 8 does not appear to be consistent with the requirements of the Act. Accordingly, the model flexibility term set out in the Fair Work Regulations 2009 is taken to be a term of the Agreement.

[9] Subject to the matters raised at paragraphs [4] – [8], I am satisfied that each of the requirements of ss.186, 187 and 188 of the Act as are relevant to this application for approval had been met.

[10] In accordance with s.201(2), I note that the Agreement covers the RTBU.

[11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 29 October 2020. The nominal expiry date is 22 October 2024.

COMMISSIONER

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Annexure A.