Watco WA Transportation Services Pty Ltd

[2024] FWCA 1308

[2024] FWCA 1308

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Watco WA Transportation Services Pty Ltd

(AG2024/1067)

WATCO WA MAINTENANCE AND ROLLINGSTOCK AGREEMENT 2024

Rail industry
COMMISSIONER LIM	PERTH, 15 APRIL 2024

Application for approval of the Watco WA Maintenance and Rollingstock Agreement 2024

1. Watco WA Transportation Services Pty Ltd (the Applicant) has made an application for the approval of an enterprise agreement known as the Watco WA Maintenance and Rollingstock Agreement 2024 (the Agreement). The application was made under 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) (Amending Act) 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 under s 173(2) was 19 December 2023 and the Agreement was made on 22 March 2024. 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 and accompanying declarations, 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 have been met.

1. I note that the following clauses in the Agreement appear to be inconsistent with the National Employment Standards (NES):

(a)Clause 7.1 provides for a full-time team member to work an average of 84 ordinary hours averaged over the roster cycle. The roster cycle is defined as being a 2-week period. This may be inconsistent with s.62(1) of the Act, which provides a maximum of 38 ordinary hours per week.

1. However, I am satisfied that under clause 4 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

1. The application was lodged on 3 April 2024 and thus not lodged within 14 days after the agreement was made. Pursuant to s 185(3)(b), in all the circumstances I consider it fair to extend the time for making the application to the date it was actually made.

1. The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (the AMWU), being a bargaining representative for the Agreement, has given notice under s 183 of the Act that it wants the Agreement to cover it. In accordance with s 201(2), and based on the declaration provided by the AMWU, I note that the AMWU is covered by the Agreement.

1. The Agreement was approved on 15 April 2024 and, in accordance with s 54, will operate from 22 April 2024.  The nominal expiry date of the Agreement is 15 April 2027.

COMMISSIONER

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