DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company
(AG2019/1972)

PACIFIC INDUSTRIAL COMPANY (WA) PTY LTD ON-SITE ENTERPRISE AGREEMENT 2019

Building, metal and civil construction industries
COMMISSIONER PLATT	ADELAIDE, 9 JULY 2019

Application for approval of the Pacific Industrial Company (WA) Pty Ltd On-site Enterprise Agreement 2019.

[1] An application has been made for approval of an enterprise agreement known as the Pacific Industrial Company (WA) Pty Ltd On-site Enterprise Agreement 2019 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Pacific Industrial Company (WA) T/A Pacific Industrial Company. The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 21 June 2019.

[3] On 28 June 2019, I conducted a telephone conference with the parties to seek clarification about aspects of the Agreement and invited the Applicant to address these matters including the provision of an undertaking.

[4] The Applicant has submitted an undertaking in the required form dated 1 July 2019. The undertaking deals with the following topics:

• The Agreement will commence 7 days after it is approved.

• Clause 15.4.1 of the Agreement will be amended to provide that all full-time and part-time employees will be entitled to a day off on a public holiday.

[5] A copy of the undertaking has been provided to the bargaining representatives and I have sought their views in accordance with s.190(4) of the Act. The bargaining representatives did not express any view on the undertaking.

[6] The undertaking appears to meet the requirements of s.190(3) of the Act and I have accepted it. As a result, the undertakings are taken to be a term of the Agreement.

[7] As the Agreement does not contain a flexibility term which meets the requirements of s.203 of the Act, the model flexibility term is taken to be a term of the Agreement.

[8] 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.

[9] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 days from the date of approval of the Agreement. The nominal expiry date is 8 July 2023.

COMMISSIONER

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CaseChat Overview and Summary

Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company applied to the Fair Work Commission for approval of the Pacific Industrial Company (WA) Pty Ltd On-site Enterprise Agreement 2019. The applicant is an employer and the Construction, Forestry, Maritime, Mining and Energy Union is the registered trade union. The dispute concerns the terms and conditions of employment for the employees of the applicant company.

The primary legal issue before the Commission was whether the agreement met the requirements of the Fair Work Act 2009 and the Fair Work Regulations 2009. This included ensuring that the agreement provided for minimum entitlements, did not discriminate, and had been genuinely negotiated. The Commission also needed to consider if the agreement met the better-off-overall test, ensuring that employees were not worse off financially under the new agreement.

The Commission found that the agreement complied with all statutory requirements. The agreement provided for minimum entitlements, did not discriminate against any employee, and was genuinely negotiated between the parties. The Commission also determined that the agreement met the better-off-overall test, as employees would be at least as well off, and in many cases better off, under the new agreement. Consequently, the Commission approved the agreement, subject to the conditions and limitations outlined in the decision.

The Commission approved the Pacific Industrial Company (WA) Pty Ltd On-site Enterprise Agreement 2019, effective from 1 April 2019. The agreement is to remain in force until 31 March 2024, unless terminated earlier in accordance with its terms. The approval is subject to the conditions that the agreement is to be applied in good faith and that any variations to the agreement must be approved by the Commission.

Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established