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

Printed by authority of the Commonwealth Government Printer

In the matter of NuStaff Pty Ltd, the Fair Work Commission was presented with an application for the approval of the Nustaff Pty Ltd National Enterprise Agreement 2016. The primary parties involved in this case were NuStaff Pty Ltd, the employer, and the Australian Manufacturing Workers’ Union, representing the employees. The dispute centred around the terms and conditions outlined in the proposed enterprise agreement, which sought to govern the employment relationship between NuStaff Pty Ltd and its workforce.

The legal issues that the Commission had to address included whether the proposed agreement met the statutory requirements for approval under the Fair Work Act 2009, specifically whether it contained the necessary minimum terms and conditions, and whether it was made in good faith and without coercion. The Commission also needed to consider whether the agreement provided for appropriate processes for resolving disputes and ensuring that employees were not disadvantaged because of their involvement in the agreement-making process.

The Fair Work Commission determined that the proposed enterprise agreement satisfied the necessary statutory criteria. The Commission found that the agreement contained all the required minimum terms and conditions and was made in good faith. The processes for resolving disputes were deemed adequate, and the Commission was satisfied that employees were not being disadvantaged due to their involvement in the agreement-making process. Consequently, the Commission approved the Nustaff Pty Ltd National Enterprise Agreement 2016.

As a result of the Commission's decision, the agreement was approved and will now govern the terms and conditions of employment between NuStaff Pty Ltd and its employees as represented by the Australian Manufacturing Workers’ Union. This decision sets a precedent for similar enterprise agreements and ensures that the terms are fair and comply with the statutory requirements.

NuStaff Pty Ltd

DECISION

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