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Fair Work Act 2009
s.185—Enterprise agreement
Sydney Trains
(AG2023/240)
SYDNEY TRAINS AND NSW TRAINLINK ENTERPRISE
AGREEMENT 2022
Rail industry
ACTING PRESIDENT HATCHER
DEPUTY PRESIDENT CROSS
COMMISSIONER RIORDAN
SYDNEY, 10 FEBRUARY 2023
Application for approval of the Sydney Trains and NSW TrainLink Enterprise Agreement 2022.
[1] An application has been made for approval of an enterprise agreement known as the
Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (Agreement). The application
was made pursuant to s 185 of the Fair Work Act 2009 (FW Act). It has been made by Sydney
Trains and NSW TrainLink (Employers). The matter was listed for hearing before the Full
Bench on 8 and 9 February 2023.
[2] The Employers bargained for the Agreement as single interest employers. In Application
by Australian Rail, Tram and Bus Industry Union1, Deputy President Bull, dealing with an
application for a protected action ballot, found the Employers to be single interest employers.
In particular, the Deputy President concluded that he was satisfied the Applicants were single
interest employers, pursuant to s 172(5)(a) of the FW Act.2
[3] The Employers sought, by a Form F1 filed on 8 February 2023, to correct identified
numbering errors made in the table of contents and in the text of clauses of the Agreement.
Those errors resulted in incorrect references within the text of clauses in the Agreement.
[4] Section 218A of the FW Act provides:
218A Variation of enterprise agreements to correct or amend errors, defects or
irregularities
(1) The FWC may vary an enterprise agreement to correct or amend an obvious error,
defect or irregularity (whether in substance or form).
(2) The FWC may vary an enterprise agreement under subsection (1):
[2023] FWCA 423
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwca423.pdf
[2023] FWCA 423
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(a) on its own initiative; or
(b) on application by any of the following:
(i) one or more of the employers covered by the agreement;
(ii) an employee covered by the agreement;
(iii) an employee organisation covered by the agreement.
(3) If the FWC varies an enterprise agreement under subsection (1), the variation
operates from the day specified in the decision to vary the agreement.
[5] The errors contained in the Agreement were obvious errors of the kind anticipated by
s 218A, and no party objected to the correction of those errors. Accordingly, pursuant to s 218A,
we vary the Agreement as made as sought in the Form F1. The variations will operate from 30
January 2023, the date that the Agreement was made.
[6] Two written undertakings have been provided to address concerns identified in the
Commission’s legislative checklist document provided to the parties on 9 February 2023. The
Employers provided an undertaking that the National Employment Standards prescribed in
Division 2, s 61 of the FW Act as in force or replaced from time to time will prevail to the
extent of any inconsistency with the Agreement. A copy of that undertaking is attached and
marked Annexure A. NSW TrainLink and the Australian Rail, Tram and Bus Industry Union
(RTBU) provided a further undertaking regarding errors in the drafting of clause 199.6 of the
Agreement. A copy of that undertaking is attached and marked Annexure B. We have sought
the views of each person who is a bargaining representative for the Agreement, and none
opposes acceptance of the undertakings. We are satisfied that the undertakings are not likely to
cause financial detriment to any employee covered by the Agreement or to result in substantial
changes to the Agreement, and we are further satisfied that the undertakings meet the concerns
they are intended to address. Accordingly, we accept the undertakings pursuant to s 193 of the
FW Act.
[7] On the basis of the undertakings we have accepted, we are satisfied that each of the
requirements of ss 186, 187, 188 and 190 as are relevant to this application for approval have
been met.
[8] The following bargaining representatives have given notice under s 183 of the Act that
they want the Agreement to cover them:
• RTBU;
• “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU);
• The Association of Professional Engineers, Scientists and Managers, Australia;
• The Australian Workers’ Union;
• Construction, Forestry, Maritime, Mining and Energy Union;
• Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia; and
• Australian Municipal, Administrative, Clerical and Services Union,
[2023] FWCA 423
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[9] In accordance with s 201(2) of the FW Act, we note that the Agreement covers the above
organisations.
[10] The Agreement is approved and, in accordance with s 54 of the Act, will operate from
17 February 2023. The nominal expiry date of the Agreement is 1 May 2024.
ACTING PRESIDENT
THE FAIR WORK FAI COMMISSION THE
[2023] FWCA 423
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Annexure A
Undertaking IN THE FAIR WORK COMMISSION FWC Matter no AG 2023/240 Applicant Sydney Trains and NSW Trains t/A NSW TrainLink Undertaking S190 I Pete Allaway, Chief Executive NSW TrainLink; and I Matt Longland, Chief Executive Sydney Trains, say: 1. I have the authority to provide this undertaking in relation to this application before the Fair Work Commission on behalf of the entity that I represent. 2. Sydney Trains and NSW TrainLink undertake that The National Employment Standards prescribed by the Fair Work Act 2009 (Cth) at Division 2 section 61 as in force or replaced from time to time prevail to the extent of any inconsistency with the Sydney Trains and NSW TrainLink Enterprise Agreement 2022. Dated: 9 February 2023 Name: Pete Allaway NSW TrainLink no Name: Matt Longland Sydney Trains 1511607564v2
[2023] FWCA 423
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Annexure B
Undertaking IN THE FAIR WORK COMMISSION FWC Matter no AG 2023/240 Sydney Trains and NSW Trains t/A NSW TrainLink Applicant Undertaking S190 I Pete Allaway, Chief Executive NSW TrainLink and I Farren Campbell, of the NSW Locomotive Division of the Australian Rail, Tram and Bus Industry Union, say 1. I have the authority to provide this undertaking in relation to this application before the Fair Work Commission on behalf of the entity that I represent. 2. I acknowledge that there are unintended drafting errors in the drafting of clause 199.6 of the Enterprise Agreement, a clause that only applies to employees of NSW TrainLink. 3. NSW TrainLink and Australian Rail, Tram and Bus Industry Union undertake that: a. In Clause 199.6(a), the working beyond 9 days in a short fortnight or 10 days in a long fortnight requirement will not apply to Regional Drivers; b. In clause 199.6(c), for Regional drivers only, where the clause would result in a WOBOD payment of less than $125.00 for an applicable shift, the WOBOD payment will be $125.00 and no payment will be made under clause 199.1 or 199.6(c). c. In clause 199.6(d) the reference to 'all shifts' does not include kilometrage build up. Dated : 8 February 2023 Name: Pete Allaway NSW TrainLink thefull Name: Farren Campbell Australian Rail, Tram and Bus Industry Union 1511596010v1
[2023] FWCA 423
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Printed by authority of the Commonwealth Government Printer
AE519142 PR750379
1 [2021] FWC 4391 at [10]-[20]
2 Ibid at [20]
https://www.fwc.gov.au/documents/agreements/approved/AE519142.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc4391.htm
