Pacific National Services Pty Ltd T/A Pacific National

[2023] FWCA 1635

[2023] FWCA 1635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Pacific National Services Pty Ltd T/A Pacific National

(AG2023/1393)

PACIFIC NATIONAL ASSETS ENTERPRISE AGREEMENT 2023

Rail industry
DEPUTY PRESIDENT ROBERTS	SYDNEY, 6 JUNE 2023

Application for approval of the Pacific National Assets Enterprise Agreement 2023.

1. Pacific National Services Pty Ltd (the Applicant) has applied for the approval of a single enterprise agreement known as the Pacific National Assets Enterprise Agreement 2023 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act).

1. After the application was made, the Fair Work Commission (Commission) raised a number of preliminary concerns about the application and whether various clauses in the Agreement purported to exclude the National Employment Standards (NES) or any provision of the NES. In relation to those NES matters, the Commission noted however that the Agreement included Clauses 5.3 and 5.4, which would have the effect that where there is any inconsistency between an NES provision and the Agreement and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency. The Commission further indicated an intention to note these matters in any decision dealing with the application. Pacific National and the employee bargaining representatives were given an opportunity to respond to the matters raised.

1. In response to these concerns, written undertakings were given by the Applicant in accordance with s.190 of the Act. Those undertakings are attached at Annexure A (Undertakings). Pursuant to s. 190(4) the views of the employee bargaining representatives were sought. Two of the bargaining representatives, the Australian Rail, Tram and Bus Industry Union (RTBIU) and an individual employee bargaining representative provided correspondence advising that they did not oppose the Undertakings. The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) and one other individual appointed as an employee bargaining representative did not provide any correspondence to the Commission.

1. I am satisfied that the Undertakings are not likely to cause financial detriment to any employee covered by the Agreement or result in substantial changes to the Agreement. Pursuant to s.201(3) of the Act, the Undertakings are taken to be terms of the Agreement. To the extent that the terms of the Agreement, as amended by the Undertakings, may purport to exclude the NES, I am satisfied that Clauses 5.3 and 5.4 will operate as noted above such that the relevant NES provisions will apply.

1. On the basis of the material contained in the application, the material filed in support of the application, the Undertakings and further information provided at the request of the Commission, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

1. The AMWU and RTBIU both lodged a Form F18 statutory declaration giving notice under s.183 of the Act that they each wanted the Agreement to cover their respective unions. In accordance with s.201(2) of the Act, I note the Agreement covers the AMWU and RTBU.

1. The Agreement was approved on 5 June 2023 and, in accordance with s.54, will operate from 13 June 2023. The nominal expiry date of the Agreement is 30 June 2026.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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Annexure A