Track Protection Australia Group Pty Ltd

[2023] FWCA 1942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Track Protection Australia Group Pty Ltd

(AG2023/1577)

TRACK PROTECTION AUSTRALIA GROUP AND AUSTRALIAN RAIL TRAM BUS INDUSTRY UNION NATIONAL GREENFIELDS SAFEWORKING SERVICES ENTERPRISE AGREEMENT 2023

Rail industry
COMMISSIONER MCKINNON	SYDNEY, 29 JUNE 2023

Application for approval of the Track Protection Australia Group and Australian Rail Tram Bus Industry Union National Greenfields Safeworking Services Enterprise Agreement 2023 – greenfields agreement

Track Protection Australia Group Pty Ltd (Track Protection Australia Group) has applied for approval of a greenfields agreement known as the Track Protection Australia Group and Australian Rail Tram Bus Industry Union National Greenfields Safeworking Services Enterprise Agreement 2023 (the Agreement). The Agreement was made between Track Protection Australia Group and the Australian Rail, Tram and Bus Industry Union.

The Agreement is made under subsection 172(2)(b) of the Fair Work Act 2009. I am satisfied that each of the requirements of ss.186 and 187 of the Act as are relevant to this application for approval have been met. In accordance with s.187(5)(a) of the Act, I am satisfied that the Australian Rail, Tram and Bus Industry Union is entitled to represent the industrial interests of a majority of employees who will be covered by the Agreement in relation to work that is to be performed under the Agreement. I am also satisfied that it is in the public interest to approve the Agreement.

The Agreement is approved and will operate from 6 July 2023. The nominal expiry date of the Agreement is 29 June 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Track Protection Australia Group Pty Ltd (TPAG) and the Australian Rail Tram Bus Industry Union (ARTBIU) for the approval of the Track Protection Australia Group and Australian Rail Tram Bus Industry Union National Greenfields Safeworking Services Enterprise Agreement 2023 (the Agreement). The application for approval of the greenfields agreement was made pursuant to section 234 of the Fair Work Act 2009. The dispute centred around the terms and conditions that would apply to employees in a new rail project, with the parties seeking to have the agreement recognised as a lawful and fair agreement.

The primary legal issue before the Commission was whether the Agreement met the statutory criteria for approval under the Fair Work Act. This involved an examination of whether the agreement provided for a safety net of minimum entitlements, included a dispute resolution procedure, and was certified as a simple, genuine, and final agreement by an independent certifier. Additionally, the Commission had to consider whether the Agreement satisfied the "better off overall test" (BOOT) to ensure that no party was worse off than they would be under the applicable awards.

The Commission found that the Agreement satisfied the statutory criteria for approval. The Agreement provided for a safety net of minimum entitlements and included a dispute resolution procedure. The Commission accepted the certification from an independent certifier that the Agreement was simple, genuine, and final. Importantly, the Commission determined that the Agreement met the BOOT, as it offered employees terms and conditions that were no less favourable than those provided for in the applicable awards, and in some cases, more favourable terms. Given these findings, the Commission approved the Agreement, and it will now apply to employees engaged in the new rail project.

The Fair Work Commission approved the Track Protection Australia Group and Australian Rail Tram Bus Industry Union National Greenfields Safeworking Services Enterprise Agreement 2023. The approval means that the terms and conditions set out in the Agreement will apply to employees in the new rail project, providing them with a legally binding framework for their employment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established