Application for approval of the Aurizon Bulk (Western Australia) Terminal Operations Enterprise Agreement 2024.

[1] Aurizon Resource Logistics Pty Limited (the Applicant) has made an application for the approval of an enterprise agreement known as the Aurizon Bulk (Western Australia) Terminal Operations Enterprise 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.

[2] The Applicant has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement.

[3] In compliance with s 190(4) of the Act, the bargaining representatives' views regarding the undertakings proffered were sought. They were provided with the opportunity to raise and address any objections they had to the undertakings proffered by the Applicant. No objection was raised.

[4] Subject to the undertakings referred to above, and 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, 188, and 190 of the Act as are relevant to this application for approval have been met.

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

• (a) Clause 21.5 states that employees do not accrue annual leave during periods of unpaid absence. This appears to be inconsistent with s 87(2) of the Act, which states that an employee's entitlement to paid annual leave accrues progressively during a year of service. Further, subject to the exceptions provided in s 22(2)(b) of the Act, various periods of unpaid leave or unpaid authorised absences such as community service leave or a period of stand down count as service and therefore may be implied to accrue annual leave.

• (b) Clause 12.5 states that if an employee fails to work the required or agreed notice, the company may withhold from any monies due to the employee on termination, the wages equivalent of the notice not worked. This clause does not appear to limit the source of monies deducted and so may restrict an employee's entitlement to payment of NES entitlements upon the termination of employment.

• (c) Clause 12.6 provides that after an employee has been absent from work for three successive shifts without contacting the company, the company will take all reasonable steps to contact the employee to determine their intention. If after five days the employee has not confirmed their intention to continue employment, the employee will have abandoned their employment at the end of the fifth day (as per clause 12.7). These clauses do not specifically provide that employees deemed to have abandoned their employment in accordance with this clause will be afforded their minimum notice of termination entitlement as per s 117(3) of the Act. Section 123 of the Act does not preclude an employee who has abandoned their employment from the entitlement to notice of termination provided by s 117 of the Act.

[6] However, I am satisfied that under clause 4.2 of the Agreement, the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[7] The Australian Rail, Tram and Bus Industry Union (the organisation), 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 organisation, I note that the organisation is covered by the Agreement.

[8] The Agreement was approved on 20 March 2025 and, in accordance with s 54, will operate from 27 March 2025. The nominal expiry date of the Agreement is 1 December 2028.

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