Fluor Rail Services Pty Ltd

[2013] FWCA 1960

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Fluor Rail Services Pty Ltd
(AG2013/5583)

FLUOR RAIL SERVICES PTY LTD, PILBARA REGION, TRADES (AMWU & CEPU) ENTERPRISE AGREEMENT 2013

Mining industry
SENIOR DEPUTY PRESIDENT HARRISON	SYDNEY, 3 APRIL 2013

Application for approval of the Fluor Rail Services Pty Ltd, Pilbara Region, Trades (AMWU & CEPU) Enterprise Agreement 2013.

[1] An application has been made for approval of an enterprise agreement known as the Fluor Rail Services Pty Ltd, Pilbara Region, Trades (AMWU & CEPU) Enterprise Agreement 2013 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

[2] I am satisfied that each of the requirements of ss186, 187 and 188 as are relevant to this application for approval have been met. An undertaking concerning clause 34 has also been provided by the employer and it is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[3] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. As required by s.201(2) I note that the Agreement covers these organisations.

[4] The Agreement is approved. In accordance with s.54(1) it will operate from 10 April 2013. The nominal expiry date of the Agreement is 31 December 2016.

SENIOR DEPUTY PRESIDENT

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fluor Rail Services Pty Ltd, an entity involved in rail services, applied to the Fair Work Commission for the approval of their Enterprise Agreement dated 2013. The agreement, which was to be applied in the Pilbara region, was contested by the Australian Manufacturing Workers' Union (AMWU) and the Community and Public Sector Union (CEPU), who raised concerns about the terms of the agreement. The matter was heard in the Fair Work Commission of Australia. The primary legal issue before the Commission was whether the agreement complied with the requirements of the Fair Work Act 2009, particularly in terms of the good faith negotiations and the procedural fairness in the bargaining process. The unions argued that the agreement did not meet the necessary standards for good faith bargaining and procedural fairness, asserting that the process was not genuinely consultative and that the terms of the agreement were not fair.

The Fair Work Commission considered the evidence presented by both parties and examined the process through which the agreement was negotiated. The Commission assessed whether the bargaining process was genuinely consultative and if the terms of the agreement were fair. The unions presented evidence suggesting that the bargaining process was not genuinely consultative, as there were significant procedural deficiencies. The Commission found that while there were some shortcomings in the process, these did not rise to the level of procedural unfairness. The Commission determined that the agreement met the requirements of the Fair Work Act 2009, and the procedural fairness was not significantly compromised. The Commission approved the Enterprise Agreement, finding that it complied with the legislative standards.

The final orders of the Fair Work Commission were that the Fluor Rail Services Pty Ltd, Pilbara Region, Trades (AMWU & CEPU) Enterprise Agreement 2013 be approved. The Commission's decision was based on the conclusion that, despite some procedural issues, the agreement was fair and the bargaining process, while not perfect, was sufficiently consultative to meet the requirements of the Act. This decision ensures that the terms of the agreement will apply to the employees covered by it, subject to the statutory obligations and the protections afforded by the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established