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Genesee & Wyoming Australia Infrastructure EA 2020

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Genesee & Wyoming Australia Infrastructure EA 2020 [2020] FWCA 1234 DECISION Fair Work Act 2009 s.185—Enterprise agreement One Rail Australia Pty Ltd (AG2020/429) GENESEE & WYOMING AUSTRALIA PTY LTD (SA/NT) INFRASTRUCTURE MAINTENANCE ENTERPRISE AGREEMENT 2020 Rail industry COMMISSIONER PLATT ADELAIDE, 10 MARCH 2020 Application for approval of the Genesee & Wyoming Australia Pty Ltd (SA/NT) Infrastructure Maintenance Enterprise Agreement 2020. [1] An application has been made for approval of an enterprise agreement known as the Genesee & Wyoming Australia Pty Ltd (SA/NT) Infrastructure Maintenance Enterprise Agreement 2020 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by One Rail Australia Pty Ltd (the Applicant). The agreement is a single enterprise agreement. [2] The matter was allocated to my Chambers on 26 February 2020. [3] On 3 March 2020, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including through the provision of an undertaking. [4] Mr Edward Lawrie appeared on behalf of the Applicant and Ms Kaye Brown appeared on behalf of the Australian Rail, Tram and Bus Industry Union together with Mr Darren Phillips and Mr Hayden Boyle. Having been advised of Ms Brown’s retirement, I take this opportunity to recognise Ms Brown’s long-standing, unwavering and proficient representation of her members interest. Her appearances have assisted her members and the Commission over the years. [5] The Applicant has submitted an undertaking in the required form dated 6 March 2020. The undertaking deals with the following topics: The definition of a shift worker will be for the purposes of the National Employment Standards (NES). To the extent that clause 13.4 (Abandonment of Employment) is inconsistent with an employee’s entitlement under s.117 of the Act, the clause does not apply. 1 [2020] FWCA 1234 In relation to clause 33.1.4 (Accrual of Annual Leave), annual leave will accrue progressively according to ordinary hours worked, in accordance with s.87 of the Act. In relation to clause 33.1.4 (Annual Leave Paid on Termination) where an employee’s employment ends and they have a period of untaken but accrued annual leave, in accordance with s.90 of the Act, the employee will be paid the amount they would have received had they taken that annual leave. Casual employees will be entitled to parental leave in accordance with s.67(2) of the Act. Public Holidays will be recognised in accordance with SA/NT legislation, regulations and government gazettes. If an employee is absent from their employment on a day or part-day that is a public holiday, the Applicant will pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day. An employee is entitled to be absent from their employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes. Where a public holiday has been substituted for another day by operation of clause 39.6 of the Agreement, an employee’s entitlement under s.114(1) of the Act is preserved for the public holiday and the prescriptions of clause 39 will apply to the substituted public holiday. In relation to clause 57.1.2 (Severance Pay on Redundancy), if an employee is made redundant and they have been with the Applicant for more than one year but less than two years, they are entitled to four weeks’ severance pay. The Applicant is obligated to apply to the Fair Work Commission for a variation of redundancy pay where such situations arise. In relation to clause 47.1(c) (Stand Down), s.524 of the Act will apply. [6] A copy of the undertaking has been provided to the bargaining representative and I have sought their views in accordance with s.190(4) of the Act. The bargaining representative did not express any view on the undertaking. [7] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement. [8] As the Agreement does not contain a consultation term which meets the requirements of s.205 of the Act, the model consultation term is taken to be a term of the Agreement. [9] The Australian Rail, Tram and Bus Industry Union, 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) of the Act I note that the Agreement covers this organisation. 2 [2020] FWCA 1234 [10] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met. [11] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 9 March 2024. COMMISSIONER Printed by authority of the Commonwealth Government Printer <AE507339 PR717303> 3 Genesee & Wyoming Australia Pty Ltd (SA/NT) Infrastructure Maintenance Enterprise Agreement 2020 TABLE OF CONTENTS PART 1 - APPLICATION OF AGREEMENT ..................................................................................................... 4 Title .......................................................................................................................................................... 4 Definitions ............................................................................................................................................... 4 Parties to this Agreement ...................................................................................................................... 4 Application and scope of this Agreement ........................................................................................... 5 Duration of this Agreement ................................................................................................................... 5 Workplace Flexibility .............................................................................................................................. 5 Commitment ............................................................................................................................................ 5 Local Employment Emphasis ............................................................................................................... 6 PART 2 - CONTRACT OF EMPLOYMENT AND RELATED MATTERS ......................................................... 6 Recruitment / Induction ......................................................................................................................... 6 Engagement ............................................................................................................................................ 6 Probationary Period ............................................................................................................................... 6 Code of Ethics ........................................................................................................................................ 7 Abandonment of Employment .............................................................................................................. 7 Standing Down of Employees ............................................................................................................... 7 Termination of Employment .................................................................................................................. 7 General Employment Obligations ......................................................................................................... 8 PART 3 - CLASSIFICATION & WAGES ........................................................................................................... 8 Classification Definitions ...................................................................................................................... 8 Wage Base Rates.................................................................................................................................... 8 Casual Employees .................................................................................................................................. 9 Use of Skills ............................................................................................................................................ 9 General Benefits and Allowances ......................................................................................................... 9 Provision of Tools .................................................................................................................................. 9 Payment of Wages.................................................................................................................................. 9 PART 4 - WORKING ARRANGEMENTS ........................................................................................................ 10 Ordinary Hours of Work ....................................................................................................................... 10 Rostered Days Off ................................................................................................................................ 10 Overtime ................................................................................................................................................ 11 Recall to Duty .......................................................................................................................................
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