Pacific Rail Engineering Pty Ltd

[2021] FWCA 6282

[2021] FWCA 6282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Pacific Rail Engineering Pty Ltd
(AG2021/6914)

APPLICATION FOR APPROVAL OF THE PACIFIC RAIL ENGINEERING PTY LTD ROLLING STOCK AGREEMENT 2021

Rail industry
COMMISSIONER P RYAN	SYDNEY, 14 OCTOBER 2021

Application for approval of the Pacific Rail Engineering Pty Ltd Rolling Stock Agreement 2021

[1] Pacific Rail Engineering Pty Ltd (the Employer) has made an application for approval of an enterprise agreement known as the Pacific Rail Engineering Pty Ltd Rolling Stock Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement.

NERR and provision of Modern Award – genuinely agreed within the meaning of s.188 (2)

[2] The notice of employee representational rights (the NERR) referred to the name of the proposed enterprise agreement as the Pacific Rail Engineering Pty Ltd Rolling Stock Agreement, omitting the year. Furthermore, the proposed coverage in the NERR was described as “Three Years”. The Employer provided submissions as to these errors on 10 September 2021. I note that at the time that employees were provided a copy of the proposed agreement and other materials, there was a cover letter provided to the employees, which identified this was a renegotiation of the current rolling stock agreement applicable to employees based at the Employer’s workshops located at Chipping Norton and Tomago.

[3] I am satisfied having regard to the Employer’s submissions, the materials filed, and the decision of the Full Bench in Huntsman Chemical Company Australia Pty Limited T/A RMAX Rigid Cellular Plastics & Others (Huntsman), 1 that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the errors.

[4] Clause 8 of the Agreement incorporates the Manufacturing and Associated and Associated Industries and Occupations Award 2020 (the Modern Award). However, and notwithstanding the cover letter provided to employees referenced the incorporation of the modern award, the Employer failed to provide the employees with a copy or access to the Modern Award.

[5] In response to correspondence from my chambers on this issue, the Employer submitted “PRE employees are aware that their current hourly rate is above the modern award rates, this was also discussed during our meetings with the Union and employee chosen delegates which took place on 25/5/2021.”

[6] I was not satisfied with this response and listed the matter for conference on 22 September 2021. At the conference before the Commission the Employer made further submission as follows:

•  The failure to provide a copy of the Modern Award was a minor error by persons who were new to the bargaining process and was not done deliberately;

•  That the negotiation of the Agreement worked off the current agreement and there were no changes to the classifications or the incorporation of the Modern Award;

•  The Modern Award was available from the Employer if the employees requested it, or through the public domain.

[7] I am satisfied having regard to those submissions and Huntsman that this constitutes a minor technical or procedural error for the purposes of s.188(2)(a) of the Act, and that the employees covered by the Agreement were not likely to have been disadvantaged by the error.

[8] As a result of my conclusions regarding the NERR and the provision of the Modern Award, I am satisfied that the Agreement has been genuinely agreed within the meaning of s.188(2) of the Act.

Regulation 2.06A Requirements

[9] The application was accompanied by a signature page that did not comply in all respects with Regulation 2.06A of the Fair Work Regulations 2009 (Cth). An amended signature page was filed on 10 September 2021. I consider it appropriate in the circumstances to waive an irregularity in the form or manner in which an application was made and do so pursuant to s.586(b) of the Act.

Section 190 Undertakings

[10] The employer provided written undertakings on 13 October 2021. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the Agreement.

Sections 186, 187, 188 and 190

[11] Subject to the undertakings referred to above, 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.

Section 183 Bargaining representatives

[12] The Australian Workers’ Union (the AWU) 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 AWU.

Approval

[13] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 21 October 2021. The nominal expiry date of the Agreement is 30 June 2024.

COMMISSIONER

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 1   [2019] FWCFB 318.