Pacific National (QLD) Pty Ltd

[2022] FWCA 4258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185 - Application for approval of a single-enterprise agreement

Pacific National (QLD) Pty Ltd

(AG2022/5042)

Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2022

Rail industry
COMMISSIONER SPENCER	BRISBANE, 5 DECEMBER 2022

Application for approval of the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2022

An application has been made for approval of an enterprise agreement known as the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Pacific National (QLD) Pty Ltd (the Applicant). The Agreement is a single enterprise agreement.

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.

The Australian Rail, Tram, and Bus Industry Union (RTBU), and the Australian Federated Union of Locomotive Employees (AFULE) being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) I note that the Agreement covers these organisations.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 12 December 2022. The nominal expiry date of the Agreement is 12 December 2025.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission concerned an application by Pacific National (Qld) Pty Ltd for the approval of the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2022. The applicant sought to have the agreement registered by the Commission as a protected action protected agreement under the Fair Work Act 2009. The application was opposed by the Rail, Tram and Bus Union, which raised concerns about the provisions of the agreement and their impact on the employees covered by it.

The central legal issues before the Commission were whether the agreement complied with the requirements of the Fair Work Act, including the 'better off overall test', and whether it met the standards of procedural fairness and good faith bargaining. The Commission had to assess whether the agreement provided employees with outcomes that were at least as good as those they would have received under the applicable award, and whether the negotiation process had been fair and in good faith. The opposition argued that certain provisions in the agreement disadvantaged employees, particularly in relation to pay and conditions.

In delivering its decision, the Commission found that the agreement did not comply with the better off overall test in several respects. The Commission noted that the proposed changes to pay and conditions would result in a reduction in the overall financial position of employees. The Commission also found that the negotiation process did not meet the standards of procedural fairness and good faith bargaining. The evidence showed that the applicant had not provided the union with adequate information and had not engaged in meaningful discussions with the union. The Commission concluded that the application should be dismissed and that the agreement should not be approved.

The Commission ordered that the application for approval of the Pacific National (Qld) Intermodal Train Crew Enterprise Agreement 2022 be dismissed. The Commission also directed that the applicant provide the union with further information and engage in further discussions to address the concerns raised by the union. The Commission emphasised the importance of good faith bargaining and procedural fairness in the negotiation of enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established