Application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 - consideration of ‘fairly chosen’ requirement (ss 186(3) and (3A)) – anticipated offers of employment to employees in related entity - implications; whether undertakings address concerns that the Agreement does not meet the requirements of s 186 (s 180(5) non-compliance); ‘significant’ departures from award entitlements – whether failure to explain effect of 'detrimental terms' and provide access to a copy of the relevant modern award (s180(5)) - constitutes a minor procedural or technical error (s 188(2))

1 INTRODUCTION

[1] This matter has been on foot for quite some time. It concerns an application to approve an enterprise agreement which, if approved, would cover the employer, Karijini Rail Pty Ltd (Karijini), and train drivers operating locomotives between an iron ore mine in the Pilbara region of Western Australia and a port in Port Hedland.

[2] The application was initially granted and the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (Agreement) approved with undertakings, on 16 September 2019. An appeal against that decision was allowed by the Full Bench on 3 March 2020 (the Full Bench Decision). 1The application was remitted back to the Commission, as presently constituted, to be redetermined in accordance with the Full Bench Decision.

[3] Having considered the Full Bench Decision, a directions hearing was convened. Representatives of both Karijini Rail Pty Ltd (Karijini) and the Construction, Forestry, Maritime, Mining and Energy Union (Union) attended. During the directions hearing, three issues were distilled from the Full Bench Decision. The parties addressed those issues in their submissions and materials filed. Both also relied upon the materials filed leading to the decision of 30 April 2019 2 (the First Decision) and the subsequent decision of 16 September 2019 (the Second Decision).

[4] The Second Decision addressed the issue of Karijini’s non-compliance with s 180(5) of the Fair Work Act 2009 (Cth) (the Act), insofar as it was found that Karijini had not taken all reasonable steps to explain to the two train drivers (the two employees) their rates of pay under the Agreement. The operation of s 188(2), and undertakings proffered in response to that issue, were duly considered. 3

[5] However, on appeal, the Full Bench determined that Karijini’s non-compliance with s 180(5) extended beyond the explanation provided about the rates of pay. The Full Bench identified that, while Karijini had provided an explanation about the terms of the Agreement, it had not explained the effect of particular terms (the Explanation Issues). It held, in respect to s 180(5) of the Act, that Karijini had not taken all reasonable steps to explain the following:

(a) modes of employment that depart from those provided 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

AGLC: Karijini Rail Pty Limited [2021] FWC 364
Case: [2021] FWC 364
Decision Date: 29 JANUARY 2021

CaseChat Overview and Summary

This case concerns the approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018. The Fair Work Commission was required to determine whether the agreement had been genuinely agreed to by the employees covered by the agreement. The case involved three main legal issues. First, whether the employer had complied with s 180(5) of the Fair Work Act 2009 in relation to the explanation of the terms of the agreement to the employees. Second, whether the group of employees covered by the agreement was fairly chosen. Third, whether there were other reasonable grounds for believing that the agreement had not been genuinely agreed to by the employees. The court found that the employer had not fully complied with s 180(5) in explaining the terms of the agreement to the employees. However, the court was satisfied that the agreement had been genuinely agreed to by the employees, and that there were no other reasonable grounds for believing otherwise. The court approved the agreement, subject to certain undertakings being met by the employer.

Orders