Asciano Services Pty Ltd T/A Pacific National

[2016] FWCA 298

[2016] FWCA 298

FAIR WORK COMMISSION

DECISION

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

Asciano Services Pty Ltd T/A Pacific National
(AG2015/7219)

PACIFIC NATIONAL INTERMODAL DIVISION TERMINAL OPERATIONS ENTERPRISE AGREEMENT 2015

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 15 JANUARY 2016

Application for approval of the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2015.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Asciano Services Pty Ltd t/as Pacific National (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2015 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the ‘Union’) and is to cover 358 employees who are employed to perform work in positions within the applicant’s Intermodal Division, Terminal Operations. For the purposes of s 186(3) of the Act, I am satisfied that the group of employees to be covered by this Agreement has been fairly chosen.

[2] The employees were last notified of their representational rights on 24 November 2015 and voting for the Agreement’s approval took place between 16 and 22 December 2015. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, 216 of the 276 employees who cast a valid vote, agreed to approve the Agreement. The application for approval of the Agreement was lodged on 23 December 2015, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Ms A Tuohey, Senior HR Manager, identified the Rail Industry Award 2010 [MA000015] as the relevant reference instruments for the purposes of the Better Off Overall Test (the ‘BOOT’). Ms Tuoheysaid that the Agreement provides for higher rates of pay and afternoon and night shift penalties of 18%. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 43 and 35 respectively, and a disputes resolution procedure at clause 36 provides for conciliation and consent arbitration by the Commission.

[4] At a hearing of the application on 14 January 2016, Ms A Tuohey appeared with Mr G Moore for the applicant and Mr J Curley for the Union. Ms Tuohey outlined the main features of the Agreement and submitted that all of the legislative requirements for approval of the Agreement have been satisfied and the Agreement should be approved by the Commission. She explained that rates of pay are to be increased by 2.5% on approval, then 2.5% on 30 June 2016 and 2.5% on 30 June 2017. Mr Curley supported the submissions of Ms Tuohey and Mr Moore. The Union had filed a Declaration in relation to the application (Form 18) supporting the approval of the Agreement and giving notice that it wishes to be covered by the Agreement (s 183). For the purposes of s 201(2) of the Act, I note that the Union is to be covered by the Agreement.

[5] Having heard the parties’ submissions and upon reviewing the terms of the preapproval process documentation and the Agreement itself, I am satisfied that all of the requirements of the Act, in particular ss 180, 186, 187 and 188, in so far as relevant to this application, have been met. Accordingly, I approve a single enterprise agreement known as the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2015.Pursuant to s 54 of the Act, the Agreement shall operate from 21 January 2016 and have a nominal expiry date of 30 June 2018.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code J, AE417456  PR576142>