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CFMMEU v Karijini Rail Pty Ltd

CFMMEU v Karijini Rail Pty Ltd

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[2020] FWCFB 958

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Construction, Forestry, Maritime, Mining and Energy Union

Karijini Rail Pty Ltd

(C2019/6117)

DEPUTY PRESIDENT GOSTENCNIK

DEPUTY PRESIDENT MASSON
COMMISSIONER LEE

MELBOURNE, 3 March 2020

Appeal against decision [[2019] FWCA 6451] of Deputy President Beaumont at Perth on 16 September 2019 in matter number AG2018/3844.

Introduction and Background

On 14 August 2019 Karijini Rail Pty Ltd (Karijini) applied to the Fair Work Commission (Commission) for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (Agreement). The Agreement was approved by Deputy President Beaumont with undertakings on 16 September 2019 (Approval Decision).[1] The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) opposed the approval of the Agreement on several grounds and while it was not a bargaining representative for the proposed agreement, the Deputy President decided to hear from the CFMMEU. The Agreement covers employees engaged in one of three classifications described as Railway Worker Levels 1, 2 and 3. Karijini supplies rail crew labour to Roy Hill Infrastructure Pty Ltd in connection with the Roy Hill iron ore mine (Roy Hill) in the Pilbara region of Western Australia. Karijini’s employees drive trains hauling iron ore from the mine to the Port of Port Hedland.

Karijini is one of a group of related companies and is a subsidiary of Railtrain Group Pty Ltd (Railtrain) which operates a labour hire business and relevantly supplies train drivers in the rail and mining industry in Queensland, New South Wales, Victoria, South Australia and Western Australia[2]. Another subsidiary of Railtrain is TRRC Pty Ltd (TRRC).[3] As at December 2018, the Railtrain Group had about 400 employees throughout Australia.[4]

In 2018 TRRC had a contract to provide a rail crew workforce to Roy Hill Infrastructure Pty Ltd to work in connection with Roy Hill (TRRC Contract).[5] This contract involved the provision of approximately 50 train crew who were employed by TRRC to drive trains hauling iron ore. The termination date of the contract was 31 October 2018.

The employment of the TRRC drivers was covered by TRRC Pty Ltd Operations Agreement 2014, the nominal expiry date of which was 21 January 2019.

During discussions in May or June of 2018, Roy Hill indicated that a further 4 year contract would be offered if an enterprise agreement covering the workforce was in place for the duration of the new contract.[6] Railtrain determined to incorporate Karijini and to seek to make an enterprise agreement through it.[7] One reason for using Karijini was that it created an opportunity to negotiate a new enterprise agreement, which in turn would allow a further contract with Roy Hill to be obtained.[8] Karijini was registered as a company on 22 June 2018.

On or about 9 July 2018 Karijini employed two employees. Both employees were well known to Railtrain’s Director of Business Transformation, Mr Graham Butler, as experienced train drivers with more than 15 years’ experience in driving trains 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: [2020] FWCFB 958
Decision Date: 3 March 2020

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appealed a decision made by Deputy President Beaumont at Perth on 16 September 2019, which was handed down in matter number AG2018/3844. The case involved an application by the CFMMEU to intervene in proceedings between the respondent, Karijini Rail Pty Ltd, and its employees. The crux of the dispute was whether the CFMMEU had standing to intervene in the proceedings as an entity representing the employees, given the existing industrial action and union activities that had already occurred.

The primary legal issue before the court was to determine if the CFMMEU had standing to intervene in the proceedings against Karijini Rail Pty Ltd. The court had to consider the nature and extent of the union's involvement in the dispute, as well as the implications of the union's actions on the rights of the employees and the respondent company. The court also had to assess the timing and relevance of the union's intervention, especially in light of the already ongoing industrial activities.

The court found that the CFMMEU did not have standing to intervene in the proceedings as the union's intervention was deemed untimely and irrelevant given the circumstances of the case. The court emphasised that the union's previous actions and involvement in the dispute had already been considered, and any further intervention would not add any new or significant information to the proceedings. The court held that the union's intervention would have potentially prejudiced the rights of the respondent and the employees, and therefore, the application was dismissed. The appeal was subsequently dismissed as well.

Orders