Pacific Rail Engineering Pty Ltd

[2024] FWCA 3148

[2024] FWCA 3148

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Pacific Rail Engineering Pty Ltd

(AG2024/2966)

PACIFIC RAIL ENGINEERING PTY LTD ROLLING STOCK AGREEMENT 2024

Manufacturing and associated industries
DEPUTY PRESIDENT ROBERTS	SYDNEY, 30 AUGUST 2024

Application for the Approval of the Pacific Rail Engineering Pty Ltd Rolling Stock Agreement 2024

1. An application has been made for approval of an enterprise agreement known as the Pacific Rail Engineering Pty Ltd Rolling Stock Agreement 2024 (Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Pacific Rail Engineering Pty Ltd (Applicant). The Agreement is a single enterprise agreement. 

1. After the filing of the application the Commission raised a number of concerns with the Applicant about the application and provided an opportunity for the Applicant to respond to those concerns. Amongst the concerns it was noted that the notification time[1] for the Agreement was 8 March 2024 and that an ‘updated’ Notice of Employee Representational Rights (NERR) was provided to employees on 22 April 2024 which is outside the 14-day period prescribed by s.173(3) that the employer has to give employees the NERR. The Applicant submitted that an earlier version of the NERR had been issued to employees, but that document had contained errors. Those errors had prompted the Applicant to reissue the NERR outside the 14-day period.

1. The Applicant provided evidence that employees were advised in writing within the 14- day period that bargaining had commenced and that bargaining was being progressed through organisers and delegates of the Australian Workers Union (AWU). The AWU did not raise any concerns in relation to the provision of the NERR. An employee bargaining representative also filed a Form F18A declaration supporting the approval of the Agreement and did not raise any concerns relating to the NERR. I note also that the Agreement is to replace an existing agreement which has now passed its nominal term. The AWU is covered by that agreement.[2] The parties are experienced in the bargaining process.

2. In the circumstances I am satisfied that the failure to provide the NERR within the specified time frame is a minor procedural error and that employees were not likely to be disadvantaged by the error. I propose to disregard the error in accordance with s.188(5).    

1. Clause 22 of the Agreement deals with, amongst other things, union delegates’ facilities and training.  The clause does not include some of the entitlements provided for in Clause 40A of the modern award that covers the workplace delegates, the Manufacturing and Associated Industries and Occupations Award 2020 (Award). Pursuant to s.201(1A) of the Act the workplace delegates’ rights terms prescribed by the Award is taken to be a term of the Agreement.

1. I am satisfied that each requirement of ss186, 187 and 188 as is relevant to this application for approval has been met. The undertakings are taken to be a term of the Agreement.

1. I note that Clause 8.1 of the Agreement provides that This Agreement will be read and be interpreted in conjunction with the National Employment Standard (N ES). If there is any inconsistency between this Agreement and the NES, the more beneficial provision to an employee prevails.

1. The AWU lodged a Form F18 statutory declaration giving notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) of the Act, I note the Agreement covers the AWU.

1. The Agreement is approved and will operate in accordance with s.54 of the Act. The nominal expiry date of the Agreement is 30 June 2028.

DEPUTY PRESIDENT

[1] See s.173(2).

[2] [2021] FWCA 6282.

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