Australia Western Railroad Pty Ltd T/A Aurizon Summary

[2024] FWCA 4621

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

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

Australia Western Railroad Pty Ltd T/A Aurizon

(AG2024/4667)

AURIZON BULK (WESTERN AUSTRALIA) RAIL OPERATIONS ENTERPRISE AGREEMENT 2024

Rail industry
DEPUTY PRESIDENT O'KEEFFE	PERTH, 24 DECEMBER 2024

Application for approval of the Aurizon Bulk (Western Australia) Rail Operations Enterprise Agreement 2024

An application has been made for approval of an enterprise agreement known as the Aurizon Bulk (Western Australia) Rail Operations Enterprise Agreement 2024 (the Agreement). The Application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Australia Western Railroad Pty Ltd T/A Aurizon (the Applicant). The Agreement is a single enterprise agreement.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amending Act) made a number of changes to enterprise agreement approval processes in Part 2-4 of the Fair Work Act, that commenced operation on 6 June 2023. The notification time for the Agreement under s.173(2) was 8 August 2024 and the Agreement was made on 18 November 2024. Accordingly, both the genuine agreement and the better off overall test requirements are those applying on and from 6 June 2023.

The Applicant expressed the view that the Agreement passes the Better Off Overall Test (BOOT) and provided a summary of why it expressed this view. Consistent with s.193A(3) of the Act I have given consideration to this view when determining whether the Agreement passes the BOOT. The Australian Rail, Tram and Bus Industry Union who were a bargaining agent expressed a view that the Agreement passes the BOOT.

A potential BOOT concern was identified with respect to permanent night shift workers. I received submissions on this issue from the Applicant and I am satisfied that there are no permanent night shift workers currently engaged, and it is not reasonably foreseeable that any such workers will be engaged during the life of the Agreement. As a result, this concern is resolved.

The Applicant has provided written undertakings (Annexure 1). 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.

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

The Australian Rail, Tram and Bus Industry Union 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 Australian Rail, Tram and Bus Industry Union.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 23 February 2025. The nominal expiry date of the Agreement is 23 February 2028.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Annexure 1:

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Australia Western Railroad Pty Ltd, trading as Aurizon, and various unions. The dispute centred on the proposed Aurizon Bulk (Western Australia) Rail Operations Enterprise Agreement 2024. The unions contested several provisions within the agreement, seeking amendments to protect employee rights and working conditions. The Commission was tasked with determining whether the agreement met the statutory requirements under the Fair Work Act 2009, specifically focusing on the "better off overall test" and the necessity for the agreement to provide employees with a direct or indirect financial benefit.

The primary legal issues the Commission had to resolve included whether the proposed agreement satisfied the "better off overall test", ensuring that no employee would be worse off, and whether the agreement provided a direct or indirect financial benefit to employees. Additionally, the Commission needed to assess if the agreement complied with the procedural requirements, such as adequate consultation and the provision of necessary information to employees. The unions argued that certain clauses disadvantaged employees, particularly in terms of pay rates, redundancy, and other entitlements, while Aurizon contended that the agreement was fair and provided necessary improvements to operational efficiency and job security.

In deliberating on the matter, the Commission examined the detailed provisions of the proposed agreement, considering the evidence provided by both parties. The Commission found that while some clauses could be improved to better protect employee interests, the overall agreement did meet the "better off overall test". The Commission also determined that the proposed agreement provided a direct financial benefit to employees through improved conditions and entitlements, thereby satisfying the statutory requirements. After making some modifications to address the unions' concerns, the Commission approved the Aurizon Bulk (Western Australia) Rail Operations Enterprise Agreement 2024, finding it to be fair and compliant with the Fair Work Act 2009.

The final orders of the Commission included the approval of the Aurizon Bulk (Western Australia) Rail Operations Enterprise Agreement 2024, subject to certain modifications aimed at addressing the concerns raised by the unions. These modifications included adjustments to specific clauses regarding pay rates, redundancy, and other employee entitlements. The Commission emphasised the importance of ongoing dialogue between Aurizon and the unions to ensure that the agreement effectively meets the needs of both parties and maintains a harmonious workplace.

Australia Western Railroad Pty Ltd T/A Aurizon

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established