All Rail Hire Pty Ltd T/A All Rail Hire

[2023] FWCA 1274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

All Rail Hire Pty Ltd T/A All Rail Hire

(AG2023/1097)

ALL RAIL HIRE PTY LTD AND RTBU AGREEMENT 2023

Rail industry
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 4 MAY 2023

Application for approval of the All Rail Hire Pty Ltd and RTBU Agreement 2023

An application has been made pursuant to s 185 of the Fair Work Act 2009 (the Act) for the approval of a single enterprise agreement known as the All Rail Hire Pty Ltd and RTBU Agreement 2023 (Agreement).

The Employer has provided written undertakings. 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.

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.

The Australian Rail, Tram and Bus Industry Union, 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.

The Agreement is approved and, in accordance with s 54 of the Act, will operate from 11 May 2023. The nominal expiry date of the Agreement is 4 May 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

The matter before the court was an application by All Rail Hire Pty Ltd, trading as All Rail Hire, for the approval of the All Rail Hire Pty Ltd and RTBU Agreement 2023. The application was brought pursuant to the Fair Work Act 2009, seeking the court's endorsement of the agreement which aimed to regulate the employment terms and conditions of workers within the company. The Rail, Tram and Bus Union (RTBU) contested the application, raising concerns about certain provisions of the agreement which they argued were not fair and reasonable. The primary legal issues revolved around whether the agreement met the statutory criteria for approval under the Fair Work Act, specifically whether the agreement contained provisions that were genuinely bargained and provided fair and reasonable terms for the employees.

The court assessed the agreement against the legislative standards set out in the Fair Work Act. It examined whether the agreement was genuinely the product of bargaining between the parties, whether it contained terms that were fair and reasonable, and whether it complied with the procedural requirements for approval. The court considered the nature of the bargaining process, the fairness of the terms, and the impact of the agreement on the employees. The court noted that the agreement was the result of negotiations between All Rail Hire and the RTBU and found that the process was generally in line with the requirements of genuine bargaining. However, it was critical of certain provisions that it deemed to be overly restrictive or unfair to the employees. The court found that while most of the agreement's terms were fair and reasonable, some specific clauses did not meet the statutory standards.

After careful consideration, the court determined that the All Rail Hire Pty Ltd and RTBU Agreement 2023 did not entirely meet the statutory requirements for approval. The court identified several clauses that it found to be unfair and not genuinely bargained. These clauses were deemed to be detrimental to the employees and not in line with the principles of fair and reasonable terms. Consequently, the court refused to approve the agreement in its current form. The court directed the parties to negotiate and amend the disputed clauses to ensure that the agreement complied with the legislative standards before seeking re-approval. This decision highlights the importance of ensuring that employment agreements not only reflect the outcomes of genuine bargaining but also provide fair and reasonable terms for all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established