DECISION

Fair Work Act 2009
s 185 - Application for approval of a single-enterprise agreement

Aurizon Operations Limited and Aurizon Network Pty Ltd
(AG2014/7891)

AURIZON STAFF ENTERPRISE AGREEMENT 2014

Rail industry
DEPUTY PRESIDENT SAMS	BRISBANE, 21 JANUARY 2015

Application for approval of the Aurizon Staff Enterprise Agreement 2014 - Queensland rail freight operator - three proposed enterprise agreements - only the Staff Agreement approved - narrow majority for approval - alleged voting irregularities - whether Agreement genuinely agreed to by employees - alleged invalidity of Notice of Employee Representational Rights - irregularities would not have altered the vote for approval - evidence of confusion not sufficient - irregularities in the Notice of Employee Representational Rights not sustained - Agreement approved.

[1] On 16 October 2014, Aurizon Operations Limited (Aurizon Operations) and Aurizon Network Pty Ltd (Aurizon Network) (collectively, ‘Aurizon’ or the ‘applicants’), filed an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), for the approval of the Fair Work Commission (the ‘Commission’) of a single enterprise agreement to be known as the Aurizon Staff Enterprise Agreement 2014 (the ‘Agreement’).

[2] Aurizon Operations Limited is a wholly owned subsidiary of Aurizon Holdings Limited. Aurizon is the largest rail freight operator in Australia and is a top 50 listed company on the Australian Securities Exchange. It offers rail and road based freight transport and associated infrastructure throughout Queensland, New South Wales, South Australia, Victoria and Western Australia. Aurizon Operations is responsible for rail service delivery in Queensland. Aurizon Network operates a rail network of approximately 2,670km of heavy rail infrastructure in central Queensland. It maintains the track, bridges, structures, overheads and other associated facilities, including the planning, scheduling and control of the running of the trains on the network.

[3] Aurizon was formerly known as QR National Ltd until it was privatised in 2010. Together, both Aurizon Operations and Aurizon Network have around 5,167 employees who are members of the following Unions:

Rail Tram and Bus Union (RTBU);

Queensland Services, Industrial Union of Employees (QSU);

Professionals Australia (APESMA);

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU);

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; known as the Australian Manufacturing Workers’ Union (AMWU); and

Australian Federated Union of Locomotive Employees (AFULE).

[4] The employees of Aurizon are presently covered by thirteen enterprise agreements; all of which passed their nominal expiry date on 31 December 2013. Since 2013, Aurizon has been negotiating with the Unions for three new enterprise agreements to cover the train crews, construction/manufacturing employees and staff personnel. In or about September/October 2014, Aurizon put the three proposed agreements to a vote of the employees. The Staff Agreement was the only one approved, by a narrow margin of 463 to 433, in a ballot conducted between 7 and 13 October 2014. The other two were voted down by their respectively covered employees.

[5] At this point, I note that in the Employer’s declaration in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] FWCA 550
Decision Date: 21 JANUARY 2015

CaseChat Overview and Summary

Aurizon Operations Limited and Aurizon Network Pty Ltd, represented by their respective officers, sought approval for the Aurizon Staff Enterprise Agreement 2014 from the Fair Work Commission. The nature of the dispute centred around the proposed enterprise agreements, specifically whether they had been genuinely agreed to by the employees. This case was determined by the Fair Work Commission, which had to decide on the validity of the application for approval of the Staff Enterprise Agreement.

The legal issues that the Fair Work Commission had to resolve were whether the Staff Enterprise Agreement was genuinely agreed to by the employees and if there were any voting irregularities that could invalidate the approval. The second issue pertained to the alleged invalidity of the Notice of Employee Representational Rights due to certain irregularities. The Commission needed to assess whether these irregularities, if proven, would have impacted the outcome of the vote for approval.

The Fair Work Commission found that although there were some voting irregularities, they did not affect the overall majority in favour of the Staff Enterprise Agreement. The evidence presented did not establish sufficient confusion among the employees to deem the agreement invalid. Furthermore, the alleged irregularities in the Notice of Employee Representational Rights were not substantiated. Consequently, the Commission approved the Staff Enterprise Agreement, finding it to be genuinely agreed to by the employees.

The final orders of the Fair Work Commission approved the Aurizon Staff Enterprise Agreement 2014, dismissing the claims of alleged voting irregularities and invalidity of the Notice of Employee Representational Rights. The decision was based on the evidence presented and the assessment of whether these issues would have impacted the outcome of the vote for approval.

Orders