Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd
[2022] FWCA 4357
•12 DECEMBER 2022
| [2022] FWCA 4357 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Pacific National Services Pty Ltd, Pacific National Bulk Rail Pty Ltd
(AG2022/5058)
Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022
| Rail industry | |
| DEPUTY PRESIDENT O'NEILL | MELBOURNE, 12 DECEMBER 2022 |
Application for approval of the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022
Pacific National Services Pty Ltd and Pacific National Bulk Rail Pty Ltd have applied for approval of an enterprise agreement known as the Pacific National Intermodal Division Terminal Operations Enterprise Agreement 2022 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act) and is a single enterprise agreement.
The last Notice of Employee Representational Rights (NERR) was provided to two groups of employees (affected employees) on 14 September 2022, 160 days after the notification time for the Agreement. The Employer submits that the affected employees were recently identified as being covered by the Agreement; 7 employees transitioned to become employed by the Employer and 3 common law contract employees were identified due to an amended classification definition in the Agreement. The Employer submits that it was genuinely of the view the affected employees were not covered by the Agreement, and once it became aware that the affected employees fell within the scope of the Agreement, it took all reasonable steps to issue the NERR and consult with the affected employees. Considering the NERR was issued to existing employees at the notification time and is otherwise in its prescribed form, and that the affected employees were able to participate in bargaining before the Agreement was made, I am satisfied the Agreement would have been genuinely agreed to but for the minor procedural departure from the requirements of s.173(3) and that the employees covered by the Agreement were not likely to have been disadvantaged by this error. Accordingly, I exercise the discretion conferred by s.188(2) of the Act.
I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.
The Australian Rail, Tram and Bus Industry Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
I observe that clause 21 is likely to be inconsistent with the National Employment Standards (NES). However, noting clause 5.5 of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.
The Agreement is approved and, in accordance with s.54 of the Act, will operate from 19 December 2022. The nominal expiry date of the Agreement is 30 June 2025.
DEPUTY PRESIDENT
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