NuStaff Pty Ltd

[2016] FWCA 3222

[2016] FWCA 3222

FAIR WORK COMMISSION

DECISION

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

NuStaff Pty Ltd
(AG2016/1147)

NUSTAFF PTY LTD NATIONAL ENTERPRISE AGREEMENT 2016

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 24 MAY 2016

Application for approval of the Nustaff Pty Ltd National Enterprise Agreement 2016.

[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by NuStaff Pty Ltd (the ‘applicant’) which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the NuStaff Pty Ltd National Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (the ‘Union’) and is to cover 6 employees who are engaged in the provision of labour hire in the Rail Industry.

[2] The employees were last notified of their representational rights on 20 January 2016, and voting for the Agreement’s approval took place on 26 April 2016. The time limits under s 181(2) of the Act are thereby satisfied. In a secret ballot, all 6 of the employees agreed to approve the Agreement. The application for approval of the Agreement was lodged on 9 May 2016, thereby satisfying s 185(3) of the Act.

[3] In the Employer’s Declaration in support of the application (Form F17) Mr P Cassie, Director, identified the Rail Industry Award 2010 [MA000015] as the relevant reference instrument for the purposes of the Better Off Overall Test (the ‘BOOT’). Mr Cassiesaid that the Agreement provides for a number of terms and conditions that are more beneficial than those under the Modern Award, including higher rates of pay and domestic violence leave, and that there are no less beneficial terms. I am satisfied that the Agreement passes the BOOT. The Agreement provides for the mandatory flexibility and consultation terms at clauses 36 and 33 respectively, and a disputes resolution procedure at clause 35 erroneously refers to Fair Work Australia, which I take as providing for conciliation and arbitration by the Commission.

[4] At a hearing of the application on 20 May 2016, Mr P Cassie and Mr M Handley appeared for the applicant and Mr N Talbot for the Union. Mr Cassie 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. Mr Handley confirmed that the Agreement had a nominal expiry date of 31 December 2016 and that the parties would engage in further discussions towards the end of the year. Mr Talbot supported the applicant’s submissions. 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 NuStaff Pty Ltd National Enterprise Agreement 2016.Pursuant to s 54 of the Act, the Agreement shall operate from 27 May 2016 and have a nominal expiry date of 31 December 2016.

DEPUTY PRESIDENT

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