DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Asciano Services Pty Ltd T/A Pacific National
(AG2018/636)

PACIFIC NATIONAL BULK RAIL NSW ENTERPRISE AGREEMENT, 2018

Rail industry
COMMISSIONER CAMBRIDGE	SYDNEY, 4 MAY 2018

Application for approval of the Pacific National Bulk Rail NSW Enterprise Agreement, 2018.

[1] An application has been made for approval of an enterprise agreement known as the Pacific National Bulk Rail NSW Enterprise Agreement, 2018 (the Agreement). The application was made pursuant to s. 185 of the Fair Work Act 2009 (the Act). It has been made by Asciano Services Pty Ltd t/a Pacific National (the Employer). The Agreement is a single-enterprise agreement.

[2] The application was lodged with the Fair Work Commission (the Commission) at Sydney on 23 February 2018. On 24 April 2018, the application was referred to the Commission as currently constituted. The application included a Statutory Declaration of Andrew Fishlock made on behalf of the Employer and dated 22 February 2018 (the Declaration). The Declaration stated that the Agreement was made on 11 February 2018. Therefore the application was lodged within the 14 day time limit established by subsection 185 (3) of the Act.

[3] Part 2-4 of the Act includes various procedural requirements that must be satisfied before the Commission can approve of an enterprise agreement. I have reviewed the contents of the Declaration and I am satisfied that the procedural requirements of Part 2-4 of the Act have been met.

[4] The application for approval was listed for Hearing in Chambers before the Commission on 4 May 2018. I note that the file has included a Statutory Declaration of Jessica Epps made on behalf of the Australian Rail, Tram and Bus Industry Union (RTBU) as an employee organisations in relation to the application.

[5] I note that the Agreement contains a flexibility term at clause A43 and a consultation term at clause A31.

[6] 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.

[7] The RTBU, being a bargaining representative for the Agreement, has given notice under s. 183 of the Act that it wants the Agreement to cover it. As required by subsection 201 (2) of the Act I note that the Agreement covers the RTBU.

[8] The Agreement is approved. In accordance with subsection 54 (1) of the Act it will operate from 11 May 2018. Notwithstanding the terms of clause A4 of the Agreement, subsection 186 (5)(b) of the Act stipulates that the nominal expiry date of an enterprise agreement will not be more than 4 years after the day on which the Commission approves the agreement. Therefore, the nominal expiry date of the Agreement, as broadly contemplated by clause A4 of the Agreement, is 4 May 2022.

COMMISSIONER

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CaseChat Overview and Summary

The case before the Fair Work Commission involved Asciano Services Pty Ltd, trading as Pacific National, and the Rail, Tram and Bus Industry Union. The dispute pertained to the application for approval of the Pacific National Bulk Rail NSW Enterprise Agreement, 2018. The matter was heard in the Fair Work Commission, which has jurisdiction over enterprise agreements under the Fair Work Act 2009. The central legal issues the Commission had to address were whether the agreement met the statutory requirements for approval, particularly whether it was made in good faith and whether it contained the necessary provisions for employee protection and dispute resolution. Furthermore, the Commission needed to ensure that the agreement did not adversely affect employees' general conditions of employment.

In examining the application, the Fair Work Commission considered the principles established in previous cases such as CFMEU v FMG Operations Pilbara. The Commission assessed the process by which the agreement was negotiated, the extent of employee participation, and whether any coercion or unfairness was involved. It was also crucial to verify that the agreement included minimum terms and conditions of employment and that it did not have a detrimental impact on employees' general conditions. The Commission looked into the dispute resolution mechanisms outlined in the agreement to ensure they were fair and effective. After careful consideration, the Fair Work Commission found that the Pacific National Bulk Rail NSW Enterprise Agreement, 2018, was made in good faith and met all the statutory requirements for approval.

Consequently, the Fair Work Commission approved the enterprise agreement, recognising it as a genuine and fair agreement that balanced the interests of both the employer and employees. The Commission's decision was based on the comprehensive evidence presented and the conclusion that the agreement did not adversely affect the general conditions of employment. This approval allows the agreement to come into effect, providing a framework for the employment relationship between Pacific National and its workforce in New South Wales.

Asciano Services Pty Ltd T/A Pacific National

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established