DECISION

Fair Work Act 2009
s 185—Enterprise agreement

Australian Rail Track Corporation
(AG2016/5102)

AUSTRALIAN RAIL TRACK CORPORATION NEW SOUTH WALES (NSW) ENTERPRISE AGREEMENT 2016

Rail industry
DEPUTY PRESIDENT SAMS	SYDNEY, 7 OCTOBER 2016

Application for approval of the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016 – various objections by Union bargaining representatives to the Agreement’s approval – narrow second vote of employees approving the Agreement – Union’s vigorous ‘no’ campaign – objection as to scope of the Agreement – issuance of two Notices of Employee Representational Rights – incorporation of National Employment Standards – whether all employees ‘better off overall’ – compliance with Better Off Overall Test (BOOT) – undertakings – Agreement approved subject to s 190 of the Act being complied with.

THE APPLICATION

[1] This decision will determine an application, filed by the Australian Rail Track Corporation (the ‘applicant’ or the ‘Corporation’), pursuant to s 185 of the Fair Work Act 2009 (Cth) (the ‘Act’), which seeks the approval of the Fair Work Commission (the ‘Commission’) of a single-enterprise agreement to be known as the Australian Rail Track Corporation New South Wales (NSW) Enterprise Agreement 2016 (the ‘Agreement’). The Agreement was negotiated with the Australian Rail, Tram and Bus Industry Union (RTBU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) (collectively the ‘Combined Unions’) and five employee nominated bargaining representatives (EBRs). It replaces the Australian Rail Track Corporation (NSW) Enterprise Agreement 2012 (the ‘2012 Agreement’), whose nominal term expired on 19 August 2015.

[2] The Corporation has four other in-term enterprise agreements for infrastructure maintenance employees in New South Wales, Victoria, South Australia and Western Australia, and a general agreement covering all other employees not covered by these four agreements or the Agreement presently before the Commission for approval.

[3] The Agreement is to cover 528 New South Wales employees of the Corporation, other than infrastructure maintainers, Executive General Managers, General Managers and Managers, as defined, who hold a managerial role at stratum 3 or higher in the Corporation structure (cl 1.1.3). The scope of the Agreement and the associated requirement for the Commission to be satisfied that the group of employees to be covered by the Agreement had been ‘fairly chosen’; see: s 186(3) of the Act, were the subject of contrary contentions by the Combined Unions, which I shall come back to later in this decision.

BACKGROUND

[4] At the outset, the Commission records that there is some history to the filing of this application. Bargaining between the parties for a new agreement began on 27 February 2015 and continued intermittently throughout 2015 and the first half of 2016. It is fair to say that the bargaining has been robust and protracted, highlighted by the Corporation’s insistence that it is bound by the Federal Government’s Workplace Bargaining Policy (WBP) and…

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: [2016] FWCA 7012
Decision Date: 7 OCTOBER 2016

CaseChat Overview and Summary

The case involved the Australian Rail Track Corporation and various union representatives who objected to the approval of the Australian Rail Track Corporation New South Wales Enterprise Agreement 2016. The Fair Work Commission was tasked with deciding whether to approve the Agreement, despite objections from the unions, which included a vigorous campaign against its acceptance. The unions raised concerns about the scope of the Agreement, the process of employee consultation, and the extent to which the Agreement met the Better Off Overall Test (BOOT).

The Fair Work Commission considered several legal issues, including the proper scope of the Agreement, whether employees had been adequately consulted, and whether the Agreement met the BOOT. The Commission also examined the incorporation of the National Employment Standards and the overall fairness of the Agreement to employees. The Commission noted that although the Agreement had been narrowly approved by employees, it was critical to ensure that the Agreement was compliant with all legal requirements and that employees were indeed better off overall. The Commission further examined the union's objections and whether the unions had followed proper procedures in voicing their concerns.

The Commission found that the Agreement was within the proper scope, the consultation process was generally adequate, and the Agreement met the BOOT. The Commission acknowledged the vigorous opposition from the unions but concluded that the Agreement was fair and met the necessary legal standards. The Commission determined that the Agreement should be approved, subject to compliance with section 190 of the Fair Work Act. The Commission issued a Notice of Employee Representational Rights to ensure that employees had the opportunity to exercise their rights regarding the Agreement.

The final orders included the approval of the Agreement, subject to compliance with section 190 of the Fair Work Act. The Commission also issued a Notice of Employee Representational Rights to safeguard the employees' rights in relation to the Agreement. This decision highlighted the importance of ensuring that enterprise agreements are both fair and legally compliant while also respecting the rights of employees and unions to express their views.

Orders