DECISION

Fair Work Act 2009
s.185—Enterprise agreement

CENTRAL QUEENSLAND SERVICES PTY LTD
(AG2019/39)

BMA RAIL ENTERPRISE AGREEMENT 2018

DEPUTY PRESIDENT LAKE

BRISBANE, 18 JULY 2019

Application for approval of the BMA Rail Enterprise Agreement 2018.

Introduction

[1] An application has been made under s.185 of the Fair Work Act 2009 (the Act) for approval of an enterprise agreement known as the BMA Rail Enterprise Agreement 2018 (the Agreement) by Central Queensland Services Pty Ltd (CQS).

[2] The Agreement is to cover work performed by locomotive drivers hauling coal from predominately the Applicant’s mines to port facilities.

[3] The Construction Forestry Maritime Mining and Energy Union (CFMMEU) and one of its officials, Mr Stephen Smyth, wish to be heard in respect of the application for the approval of the Agreement.

[4] Further, the CFMMEU wants to be covered by the Agreement and gave notice pursuant to s.183 of the Act that it wants the Agreement to cover it. 1

[5] The present agreement, the BMA Rail Greenfields Agreement 2013, 2 covers the Rail, Train and Bus Union (RTBU) and was made between the Applicant and the RTBU.

[6] The original question for determination in this application for approval was whether or not the CFMMEU is or could have been a bargaining representative (default or otherwise) to the Agreement. It flows from this issue that should the CFMMEU be a bargaining representative, then the Agreement may cover it, pursuant to s. 183 of the Act.

[7] As part of hearing this application I made certain disclosures to the parties regarding my ownership of shares in the Applicant’s parent company and my professional history with the Applicant. I invited parties to make submissions with respect to these disclosures. No party pressed an objection to my determining the matter.

Chronology

[8] On 13 July 2017 the Applicant commenced bargaining for the Agreement to replace the present agreement. 3

[9] The Agreement was made on 21 December 2018 with 47 of 48 eligible employees casting valid ballots. 25 of the 47 voting employees voted in favour of approving the Agreement. 4

[10] On 4 January 2019 the Applicant lodged the Agreement for approval with the Fair Work Commission (FWC).

[11] On 4 January 2019 the RTBU filed a Form F18 in the application and indicated that the RTBU wished to be covered by the Agreement and that the RTBU supported the approval of the Agreement. 5

[12] On 4 January 2019 the Australian Federated Union of Locomotive Employees (AFULE) filed a Form F18 in the application and indicated that the AFULE wished to be covered by the Agreement and that the AFULE supported the approval of the Agreement. 6

[13] On 11 January 2019 the CFMMEU wrote to the FWC requesting documents relevant to the approval of the Agreement and stated that the union wished to be heard in relation to the approval of the Agreement.

[14] On 8 February 2019 the matter was allocated to my chambers for…

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: [2019] FWC 5003
Decision Date: 18 JULY 2019

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Central Queensland Services Pty Ltd for approval of the BMA Rail Enterprise Agreement 2018. The dispute centred around the terms and conditions of employment as outlined in the proposed agreement, which was to be applied to the employees of Central Queensland Services Pty Ltd. The Fair Work Commission was tasked with determining whether the agreement met the statutory requirements for approval under the Fair Work Act 2009.

The primary legal issue the Commission had to resolve was whether the agreement complied with the provisions of the Fair Work Act, specifically regarding the terms and conditions of employment, including pay rates, classification of employees, and other conditions such as leave entitlements. The Commission also had to consider whether the agreement provided for adequate employee representation and whether it had been fairly negotiated. The fairness of the agreement was assessed based on whether it had been negotiated in good faith and whether it offered a reasonable balance of benefits and obligations between the parties.

The Fair Work Commission found that the BMA Rail Enterprise Agreement 2018 was compliant with the statutory requirements. The Commission determined that the agreement provided for fair and reasonable terms and conditions of employment, included provisions for employee representation, and had been negotiated in good faith. The Commission was satisfied that the agreement offered a fair balance of benefits and obligations and did not contain any terms that would be detrimental to the employees. Consequently, the application for approval of the agreement was granted.

The Commission approved the BMA Rail Enterprise Agreement 2018, confirming that it met the necessary legal criteria for endorsement under the Fair Work Act. The agreement was to be applied to the employees of Central Queensland Services Pty Ltd, effective from the date of the Commission's decision. This decision ensured that the terms and conditions of employment were legally recognised and enforceable.

Orders