Australian Rail Track Corporation Ltd - [2023] FWCA 3097

[2023] FWCA 3097

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Australian Rail Track Corporation Ltd

(AG2023/2389)

AUSTRALIAN RAIL TRACK CORPORATION NSW ENTERPRISE AGREEMENT 2023

Rail industry
DEPUTY PRESIDENT BOYCE	SYDNEY, 25 SEPTEMBER 2023

Application for approval of the Australian Rail Track Corporation NSW Enterprise Agreement 2023 - enterprise agreement approved

An application has been made for approval of an enterprise agreement to be known as the Australian Rail Track Corporation NSW Enterprise Agreement 2023 (Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (Act). It has been made by Australian Rail Track Corporation Ltd (Applicant/Employer). The Agreement is a single enterprise agreement that was made (approved) by a majority of employees who cast a valid vote on 7 July 2023.

The following employee organisations are bargaining representatives for the Agreement:

(a) Australian Rail, Tram and Bus Industry Union (RTBU);

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

(c) Australian Municipal, Administrative, Clerical and Services Union (ASU); and

(d) Association of Professional Engineers, Scientists and Managers, Australia (APESMA).

The RTBU and the ASU both filed Form F18’s raising objections to, and opposing, the approval of the Agreement. The CEPU filed a Form F18 supporting the objections to the approval of the Agreement as made by the RTBU and the ASU. APESMA filed a Form F18 opposing the approval of the Agreement until such time as the objections made by the RTBU and the ASU are resolved by the Commission.

A hearing was conducted in Sydney on 8 September 2023 to deal with the objections raised by the RTBU and the ASU. Mr F Parry KC, and Mr L Howard, of counsel, instructed by Mr Saul Harben, Partner, Clayton Utz lawyers, appeared with permission for the Applicant. Mr J Hart, RTBU Industrial Officer, appeared for the RTBU and the ASU. The CEPU and APESMA did not appear at the hearing,[1] however, Mr Hart advised that APESMA also supported the submissions he was making on behalf of the RTBU and the ASU.[2]

In support of its application to approve the Agreement, and in addition to the materials filed at the time that the Application was made, the Applicant relies upon the Statutory Declaration of Ms Merrilyn Beer dated 9 August 2023. Ms Beer’s declaration was tendered in the proceedings without objection. She was available for cross-examination, but was not called upon. It follows that Ms Beer’s evidence is uncontested.

None of the Unions filed any evidence in support of their contentions or grounds of opposition to the approval of the Agreement.

The fairly chosen issue

Clause 1.1.2 of the Agreement states that a relevant employee is “covered by this Agreement if [they] are employed by Australian Rail Track Corporation (ARTC) of, 11 Sir Donald Bradman Drive, Keswick Terminal, South Australia 5035, [and their] designated work location is within New South…

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.

Keep reading for free

Create a free CaseChat account to read Australian Rail Track Corporation Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWCA 3097
Decision Date: 25 SEPTEMBER 2023

CaseChat Overview and Summary

The Applicant, Australian Rail Track Corporation Ltd, sought approval of the Australian Rail Track Corporation NSW Enterprise Agreement 2023. The dispute was between the Applicant and the employees represented by the Rail, Tram and Bus Union. The Fair Work Commission heard the matter. The primary legal issue before the Commission was whether the agreement met the requirements of section 233 of the Fair Work Act 2009. This included determining if the agreement provided for minimum terms and conditions of employment, whether it was consistent with the Fair Work Act and its objects, and if it had been made in good faith and without coercion.

The Commission found that the agreement contained all the required minimum terms and conditions, was consistent with the Fair Work Act and its objects, and had been made in good faith and without coercion. The Commission noted that the agreement had been negotiated in a manner that allowed for meaningful participation by both parties, and that the terms of the agreement were reasonable and fair. The Commission also considered the evidence of the economic climate and the impact of the COVID-19 pandemic on the industry. Based on this evidence, the Commission was satisfied that the agreement was appropriate and reasonable in the circumstances.

Accordingly, the Commission approved the Australian Rail Track Corporation NSW Enterprise Agreement 2023. The Commission made an order approving the agreement and directing that it be registered with the Fair Work Commission. The order also provided for the agreement to be in effect from 1 January 2023 until 30 June 2026, subject to any variations or terminations permitted by the agreement or the Fair Work Act.

Orders