Track Protection Australia Pty Ltd

[2025] FWCA 2200

[2025] FWCA 2200

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Track Protection Australia Pty Ltd

(AG2025/1970)

TRACK PROTECTION AUSTRALIA & RTBU ENTERPRISE AGREEMENT 2025

Rail industry
COMMISSIONER MIRABELLA	MELBOURNE, 4 JULY 2025

Application for approval of the Track Protection Australia Pty Ltd & RTBU Enterprise Agreement 2025

1. Track Protection Australia Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Track Protection Australia Pty Ltd & RTBU Enterprise Agreement 2025 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (Cth) (the Act). The Agreement is a single enterprise agreement.

1. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) made a number of changes to enterprise agreement approval processes in Part 2–4 of the Act, that commenced operation on 6 June 2023. The notification time for the Agreement was 28 April 2025 and the Agreement was made on 5 June 2025. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

1. On the basis of the material contained in the application, I am satisfied that each of the requirements of sections 186, 187, 188 and 190, as are relevant to this application for approval, have been met.

1. The Notice of Employee Representation Rights (NERR) is unclear whether employees knew they were in a classification covered by the Agreement at the time the NERR was provided. On the basis of the material contained in the application and accompanying material provided, I am satisfied that the employees covered by the Agreement were not likely to have been disadvantaged by the error. As a result, I am satisfied that the Agreement has been genuinely agreed to within the meaning of s.188(5) of the Act.

1. I observe that the following provisions are likely to be inconsistent with the National Employment Standards (the NES):

• Clause 15.2: (Entitlement to Annual Leave); and

  • Clause 16.1.7 (Public Holidays)

1. However, noting clause 1.4.1 of the Agreement, I am satisfied that the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The Australian Rail, Tram and Bus Industry Union (RTBU), being a bargaining representative for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) (and based on the declarations provided by the organisation), I note that the Agreement covers the organisation.

1. After the Agreement was lodged, it came to my attention that clause 1.1 of the Agreement states that the title of the Agreement is “Track Protection Australia Pty Ltd & RTBU Enterprise Agreement 20254” [emphasis added].

1. Having regard to the application and accompanying material, I am satisfied that there is an obvious error in the title of the Agreement. It is clear that the Agreement was intended to be named the “Track Protection Australia Pty Ltd & RTBU Enterprise Agreement 2025” and that the inclusion of a “4” is likely to have been a typographical error.

1. Section 218A of the Act states that the Fair Work Commission may exercise its discretion to correct or amend an obvious error in an enterprise agreement and may do so on its own initiative. I am satisfied that the error outlined at [8]-[9] should be corrected by varying the Agreement. Clause 1.1 of the Agreement is varied so that it now reads ‘Track Protection Australia Pty Ltd & RTBU Enterprise Agreement 2025 (Agreement)’ [emphasis original]. There are no grounds of which I am aware which would tend against the exercise of my discretion to vary the Agreement.

1. I Order,[1] pursuant to s.218A of the Act, that the Agreement be varied to correct the errors outlined at paragraphs [8]–[9].

1. The Agreement is approved on 4 July 2025 and, in accordance with s.54 of the Act, will operate from 11 July 2025. The nominal expiry date of the Agreement is 10 July 2028.

COMMISSIONER

[1] PR788901.

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<AE529576  PR788900>