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Karijini Rail Pty Limited

Karijini Rail Pty Limited

Case [2019] FWC 2907 30 April 2019

Collective Agreement

Collective Bargaining

Good Faith Bargaining

Employment & Labour Law

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[2019] FWC 2907

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Karijini Rail Pty Limited
(AG2018/3844)

DEPUTY PRESIDENT BEAUMONT

PERTH, 30 APRIL 2019

Application for approval of the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018. – whether genuinely agreed s 180(5), s 188(1)(c)

[1] Karijini Rail Pty Ltd made an application to the Commission for the approval of an enterprise agreement known as the Karijini Rail Pty Ltd Rail Operations Pilbara Enterprise Agreement 2018 (theAgreement). The Agreementis a single-enterprise agreement.

[2] There is a controversy over whether the Agreementshould be approved by the Fair Work Commission.

[3] The Construction, Forestry, Maritime, Mining, and Energy Union (CFMMEU) objected to the approval of the Agreementon several grounds. While the CFMMEU did not have a right to be heard, I decided to hear from it. 1 Karijini had no objection to this course. 2 I was satisfied that the CFMMEU had the requisite interest in the application its rules providing coverage of the mining industry. Further, it was likely, to the extent that Karijini was to employ persons under the Agreement in the future, some would be members of the CFMMEU.3

[4] The CFMMEU’s objections included that the Agreement had not been genuinely agreed to, it had not passed the Better Off Overall Test (BOOT), and a term (or terms) of the Agreement contravened the National Employment Standards (NES).

[5] Concerning the issue of whether the Agreement was genuinely agreed to, the first contention was that when the Agreementwas made it was not possible for the two train drivers (the two employees) who were asked to approve the Agreement to be covered by it. The coverage clause essentially confined coverage to employees employed in the classifications set out in the Agreement when engaged in particular rail operations. When the Agreement was made, Karijini did not have a contract to provide rail crew labour at those particular operations, was not performing such work, and no work was guaranteed. Therefore, the two employees who made the Agreement were not covered by it when made, and it followed, according to the CFMMEU that the Commission could not be satisfied the Agreementwas genuinely agreed to.

[6] Adopting a broader view, the CFMMEU submitted that the principal purpose for Karijini’s employment of the two employees was simply to enable the making of an enterprise agreement; it was not the performance of work. Again, the CFMMEU submitted that the Commission could not be satisfied the Agreementwas genuinely agreed to.

[7] The second issue concerned whether the Commission could be satisfied that Karijini had complied with s 180(5) of the Fair Work Act 2009 (Cth) (the Act), namely that all reasonable steps had been taken to explain the terms of the agreement and their effect. In short, the CFMMEU submitted that the Commission could not be satisfied because what had been provided was a precis of the terms, not an explanation. Further, there was a…

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.

Continue reading Karijini Rail Pty Limited

Details

AGLC: Karijini Rail Pty Limited [2019] FWC 2907
Case: [2019] FWC 2907
Decision Date: 30 APRIL 2019

CaseChat Overview and Summary

In the matter of Karijini Rail Pty Limited, the Fair Work Commission was called upon to assess the approval of the Rail Operations Pilbara Enterprise Agreement 2018. The dispute centred on whether the agreement had been genuinely agreed upon by the parties, as required by section 180(5) of the Fair Work Act 2009, and whether it met the criteria under section 188(1)(c) of the Act. The application for approval was made by the employer, and the union, representing the employees, contested the genuineness of the agreement.

The central legal issues the Commission needed to address were the authenticity of the agreement and its compliance with the legislative requirements. Specifically, the Commission had to determine if the agreement reflected the genuine consensus of the parties and whether it met the statutory standards for enterprise agreements, including the absence of coercion or unfair bargaining practices.

The Commission examined the evidence presented by both the employer and the union, focusing on the process through which the agreement was negotiated and executed. It considered the nature of the negotiations, the involvement of the union, and the extent to which employees had been consulted. The Commission found that the agreement had indeed been genuinely negotiated and agreed upon by the parties, with no evidence of coercion or unfair practices. It further determined that the agreement complied with all statutory requirements, including the absence of any prohibited content under section 188(1)(c) of the Act.

Consequently, the Fair Work Commission approved the Karijini Rail Pty Limited Rail Operations Pilbara Enterprise Agreement 2018, recognising it as a genuine agreement that met all necessary legal standards. This approval allows the agreement to come into effect, governing the employment terms and conditions for the parties involved.

Orders